









' 













SENATE. 


No. 150. 




REPORT 


OF 


THE JOINT SPECIAL COMMITTEE 

1 I I fl ! < I 


OF THE 


LEGISLATURE OF MASSACHUSETTS 


ON THE 


PETITIONS POP AND REMONSTRANCES AGAINST THE REMOVAL FROM OFFICE 


OF 



DAY, 


f Judge of Trobate and Insolvency of the County of Barnstable. 


STENOGRAPHIC NOTES OF THE TESTIMONY AND ARGUMENTS. 


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BOSTON: 

3&antJ, Albers, & (£ 0 ., Printers to ttje Commontoealtf), 

117 Franklin Street. 

1882 . 

















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SENATE 


. . No. 150. 


Commonrocaltl) of Jilcissdcljitsdts. 


Senate, May 9, 1882. 

The Joint Special Committee, to whom was referred the peti¬ 
tion of Laban Baker 2d and others for the removal by address 
of Joseph M. Day from the office of judge of probate and insol¬ 
vency for the county of Barnstable, and sundry remonstrances 
of Nathan Edson and others against the same, submit the fol¬ 
lowing : — 

REPORT. 

Prior to offering any evidence upon the matter, the petitioners 
filed certain charges and specifications upon which they relied 
as grounds for granting the petition (pp. 8, 27, 28, 109, 140). 

To these charges and specifications, the remonstrants by their 
counsel filed a motion, preliminary answer, and answer, and 
the respondent filed a communication in the nature of a plea 
(pp. 29, 30, 31). 

The motion, which related to charge IX., was overruled. The 
preliminary answer and plea set up, — 

1. That the remonstrants and respondent ought not to be 
required to answer any charges which had not first been sub¬ 
mitted to the Senate and House of Representatives. The Com¬ 
mittee overruled this objection on the ground that the charges 
filed were simply for the convenience of all concerned, and to 
secure a more orderly proceeding. 

2. That no evidence should be heard upon charges which 
were substantially the same as those of last year on the ground, 
that, in view of the action of the Legislature of last year, they 
were res adjudicata . The Committee ruled that this objection, 








1Y 


HEARING —JOSEPH M. DAY. 


[May, 


if ever open in legislative matters, was not applicable to this 
case, one branch of the Legislature having decided in favor of, 
and the other against, the removal of the respondent: that the 
legislative action of last year was more analagous to a disagree¬ 
ment of the jury than a judgment or a verdict. 

3. That charges which would render the respondent liable to 
impeachment could not be inquired of in a proceeding for 
removal by address. This important question Was elaborately 
and ably discussed by the eminent counsel for the remonstrants 
and petitioners. Its determination rests upon the proper inter¬ 
pretation of Art. I. of Chap. III. of our Constitution. Art. I. 
provides that — 

“ All judicial officers duly appointed, commissioned, and sworn, shall hold 

their offices during good behavior, excepting such concerning whom there is 

a different provision made in this Constitution; provided, nevertheless, the 

Governor, with the consent of the Council, may remove them upon the 

address of both Houses of the Legislature.” 

* 

After a careful consideration of this article, it seemed to us that 
it clearly reserved to the people of the Commonwealth the right 
to remove, by the concurrent action of the three branches of 
the government, any judicial officer for any cause, or without 
cause. It embodies the idea that the will of the people is to be 
supreme. Had the framers of this article intended to restrict 
its application to non-impeachable offences, they would have 
done so by express words of limitation. The constitutions of 
Michigan, South Carolina, and Texas provide that removal by 
address shall be for reasonable cause, which shall not be suffi¬ 
cient ground for impeachment. Florida, Minnesota, and Penn¬ 
sylvania expressly exempt the highest judicial officers from 
removal by address. The constitution of West Virginia author¬ 
izes removal by address for “mental or physical disability.” 
Other States have no provisions for address, and rely wholly on 
impeachment. Several have a provision similar to that of our 
own, wholly unrestricted as to the reasons for removal, but 
varying somewhat in the method of procedure. 

The able counsel for the remonstrants argued that these pro¬ 
visions in the constitutions of other States favored their inter¬ 
pretation of our own constitution. It seemed to us, however, 
that they tended to show that the interpretation of the remon¬ 
strants was erroneous; that they recognized the necessity of 
limiting in express terms the right of removal by address, in 
order to prevent it from applying to all offences. The power 



1882.] 


SENATE —No. 150. 


y 


reserved in Art. I. is the same exercised by the English Stuarts 
when all judges held “ during the king’s pleasure.” 

This power was subsequently conferred by the Settlement 
Act upon • the Houses of Parliament and king jointly by the 
words u but upon the address of both Houses of Parliament it may 
be lawful to remove them,” —a power unlimited and unrestricted. 
To this source must be ascribed the provision of our own Con¬ 
stitution. Nothing in the Constitution conflicts with this view. 
The provisions of Art. VIII. of Sect. II. of Chap. I. of our Con¬ 
stitution are concurrent, so far as they apply to judicial officers, 
and not exclusive. Art. VIII. provides a different method of pro¬ 
cedure, and applies to all officers, judicial and elective. Under it, 
if the officer impeached is found guilty of a single illegal act, the 
Senate is bound to render judgment, and may not only remove, 
but disqualif}", him from office. In proceedings for removal 
by address, the respondent may be found to have committed 
illegal acts, but he cannot be disqualified from office; or 
he may have committed no illegal act, and yet be removed as 
unworthy of the public confidence, and unfit to hold the office. 
The debate in the Constitutional Convention of 1820 clearly 
shows that the eminent lawyers who were members of that body 
conceded the unrestricted power of address under Art. 1., and 
regarded it as a defect in the Constitution. 

That convention was considering this question while the 
Constitution was novel and barely tried. Its scope and inten¬ 
tions were familiar to many of the participants in the debates 
upon the judiciary. The power of removal by address was 
generally deemed to be absolute and dangerous, and the 
endeavor was to restrict its exercise. 

The report of the committee [Judge Story, Chairman] which 
was appointed to take this clause into consideration, and which 
was largely made up of those who subsequently engaged in the 
debate, clearly raised a distinct issue. They reported, that, 
“ By the first article in the Constitution, any judge may be 
removed from his office by the Governor, with the advice of 
the Council, upon the address of a bare majority of both Houses 
of the Legislature.” This, they deemed, subjected the judiciary 
to a power which could be recklessly used; and recommended 
that — 

“ A provision which should at once secure to the people a power of 
removal in cases of palpable misconduct or incapacity, and at the same time 


VI 


HEARING —JOSEPH M. DAY. 


[May, 


secure to the judges a reasonable permanency in their offices, seems of the 
greatest utility; and such a provision will, in the opinion of the committee, 
be obtained by requiring that the removal, instead of being upon the address 
of a majority , shall be upon the address of two-lliirds of the members present 
of each House of the Legislature.” 

The Constitution stands exactly now as it did then, the 
people having failed to adopt an amendment which sprung from 
this report. The discussion which followed upon the proposed 
amendment disclosed a weight of opinion in favor of this con¬ 
struction. 

Mr. Webster in that debate uses the following language: — 

“ As the Constitution now stands, all judges are liable to be removed from 
office by the Governor with the consent of the Council on the address of the 
two Houses of the Legislature. It is not made necessary that the two 
Houses should give any reasons for their address, or that the judge should 
have an opportunity to be heard. I look upon this as against common right 
as well as repugnant to the general principle of the government.” . . . 
(Massachusetts Convention, p. 217, Advertiser Edition.) 

And further on he says, — 

“ The new constitution of Maine has a provision with which I should be 
content, which is that no judge shall be liable to be removed by the Legis¬ 
lature till the matter of his accusation has been made known to him, and he 
has had an opportunity of being heard in his defence. This seems no more 
than common justice, and yet it is much greater than any security which at 
present exists in the Constitution of this Commonwealth.” (Massachusetts 
Convention, p. 218.) 

The convention subsequently, on motion of Mr. Webster, 
adopted an amendment in regard to notice to, and hearing of, 
the party accused, which was rejected by the people. In the 
convention of 1853 the above view of the right of removal by 
address, under the Constitution, was recognized. 

The precedents of this Commonwealth are against the inter¬ 
pretation of the remonstrants. As early as 1803, the Legislature 
removed by address for misconduct and malfeasance in office 
two justices of the court of common pleas, — Paul Sargent 
and William Yinal. The right of removal by address in those 
cases must have been thoroughly discussed at the time. John 
Quincy Adams then denied the right, claimed that such 
was not the intent of the Constitution, and had his protest 
against the proceedings spread upon the journal of the Senate. 
The cases of E. G. Loring, removed by address in 1858, and of 
Abraham Jackson and Francis Munroe, jun., removed by address 


1882.] 


SENATE —No. 150. 


vn 


in 1876, clearly show that the Legislature which removed them 
regarded the right of removal by address as wholly unrestricted* 
In the language of the minority of the Committee of last year 
in their report upon this same matter, — 

“We are therefore forced to the conclusion, that, whether we look to the 
natural construction of the language of our Constitution, or the origin of 
the provision for the removal of judicial officers, or the interpretation appar¬ 
ently given this provision in the constitutions of our sister States, or the 
opinions of eminent lawyers regarding it, or the precedents found in the 
action of former Legislatures, every thing which indicates the fitness or 
unfitness of a judicial officer may be considered upon the question of his 
removal by address.” 

Believing this to be the law, we did not attempt to pass upon 
its wisdom or unwisdom, nor compare its advantages or disad¬ 
vantages with those of impeachment. The Constitution allows 
two methods of procedure for the removal of a judicial officer. 
Under it, the petitioners chose to proceed by address. It was 
not for us to decide whether we thought it the better course, but 
whether the petitioners had a right to pursue it under the Con¬ 
stitution. The Committee overruled the third objection, and 
proceeded to hear the evidence. 

The answer and plea set up a general denial of the truth of 
each and every specification. 

Upon this issue, a large mass of evidence was introduced. We 
report the facts found by us, and the law applicable to the same ; 
and append to this report all the pleadings and evidence in the 
case, together with the arguments of counsel. 

The first charge alleges, — 

“ That he has been in the practice and habit of improperly and illegally 
acting as counsel for and advising with executors and guardians and other 
parties to proceedings in the probate court for the county of Barnstable; 
and that he was improperly and illegally retained and employed as coun¬ 
sel in the following instances: to wit,” — (and then follow the specifications.) 

The law applicable to this charge and all the cases under it is 
as follows: — 

The Bill of Rights, Art. 29, declares that, — 

“ It is the right of every citizen to be tried by judges as free, impartial, 
and independent as the lot of humanity will admit.” 

Chap. 119, sect. 6, of the General Statutes (Public Statutes, 
chap. 158, sect. 21), provides that,— 




HEARING —JOSEPH M. DAY. 


[May, 


• • • 

Vlll 

“No judge shall be retained or employed as counsel or attorney, either 
in or out of court in any suit or matter which may depend on or in any way 
relate to a sentence, decision, warrant, order, or decree made or passed by 
him, nor for or against an executor, administrator, or guardian appointed 
within his jurisdiction in a suit brought by or against the executor, adminis¬ 
trator, or guardian as such; nor in a suit relating to official conduct of such 
party, nor for or against a debtor, creditor, or assignee in a cause or matter 
arising out of or connected with any proceedings before him; nor in an 
appeal in any such case or matter. ’ ’ 

The facts found upon the various specifications of charge one 
are as follows: — 

1. In 1858, in reference to the will of Daniel Cummings. 

Joseph and George Cummings were appointed executors of 
the will of their father Daniel Cummings, Jan. 12, 1858, by the 
probate court of Barnstable, of which George Marston was then 
judge, and Joseph M. Day register. Mr. Day became judge of 
the court in June or July of that year. While the estate was 
in process of settlement, a dispute arose in regard to a certain 
clause in the will. On or about Dec. 4, 1858, Joseph Cum¬ 
mings asked Judge Day for his opinion on the clause in ques¬ 
tion. Judge Day gave his opinion, and charged and received 
therefor the sum of five dollars. The money was paid by, and 
the receipt given to, Joseph and Calvin Cummings (pp. 241, 
242). No account was ever rendered by the executors. The 
heirs settled between themselves by the passing of receipts (pp. 
242, 460). The action of Judge Day in this transaction, if 
not illegal, was at least highly improper. Judge Day, as coun¬ 
sel, construed a will upon which he might be required to pass 
as judge in allowing or disallowing the final account of the 
executors. 

2. In the case of Noble P. Swift, a debtor in insolvency. 

Emily Harrison brought a suit against Noble P. Swift in the 
superior court of Barnstable, and recovered a verdict against 
him of fifteen hundred dollars (p. 244), at the September term, 
1866. The case was heard on exceptions by the supreme court, 
and a rescript was sent down Oct. 22, 1866, ordering judgment 
to be entered on the verdict (p. 327). Judge Day was sole 
counsel for Swift in this case. On March 21, 1867, Swift filed 
a voluntary petition in insolvency before Judge Day (p. 213), 
upon which he was adjudged insolvent, his estate settled, and 
a discharge granted by Judge Day. Swift emploj 7 ed one Saw- 


1882.} 


SENATE —No. 150. 


IX 


yer as liis attorney to prepare his petition, but beyond this 
appears to have had no counsel in the insolvency proceedings 
(pp. 128, 129, 247). Emily Harrison, who had received noth¬ 
ing on the judgment she had obtained against Swift in the suit 
in which Judge Day was counsel, appeared as a creditor of 
Swift in the insolvency proceedings. The evidence showed (pp. 
125, 126, 472) that Judge Day received his pay as counsel in 
the suit of Harrison v. Swift between the date of the rescript 
and the filing of the petition in insolvency, a period less than 
six months. Certain notes were offered for proof in the insol¬ 
vency proceedings, which the counsel for Miss Harrison claimed 
were fraudulent (pp. 244, 279, 280). A written protest was 
filed by Miss Harrison at the commencement of the insolvency 
proceedings, alleging fraud on the part of Swift, desiring an 
impartial investigation, and objecting to' the action and sitting 
of Judge Day in the case (p. 213). Judge Day, however, 
acted as judge during the entire proceedings. The notes were 
allowed, the debtor discharged, the estate paid a large dividend, 
and no appeal from the judge’s decisions was taken by any 
party. In this case the evidence shows no illegal action on the 
part of Judge Day, but great impropriety. Circumstances 
could scarcely arise which would more urgently call for a judge 
to avail himself of that provision of law found in chap. 119, 
sect. 3, of the General Statutes; viz.,— 

“The judges may interchange services or perform each other’s duties, 
when they find it necessary or convenient.” 

His conduct was well calculated to arouse suspicion and 
cause a loss of public confidence. 

3. In 1873, for Eleazer Nickerson, administrator of Seth T. Nickerson. 

The evidence upon this charge will be found on pp. 104, 
212, 228, 230, 278, 279, 454. It is, with the exception of 
the testimony of one witness, the same testimony presented 
to the Committee of last year. The statements of the minority 
of that Committee presents the facts so clearly and concisely 
as they appeared to us that it may be well to repeat it: — 

“Under this first allegation it was proved, and not disputed, that a suit 
was brought for washes in tin; District Court of the United States against 
the schooner ‘ Benjamin English,’ which was a part of the estate formerly of 
Seth T. Nickerson, deceased, then held by his administrator, Eleazer Nick¬ 
erson, and that this suit was defended by Judge Day as counsel for the 





X 


HEARING —JOSEPH M. DAY. 


[May, 


administrator. His violation of law and disregard of duty were brought to 
Judge Day’s attention at the time, but he persisted in acting; and, the 
estate being insolvent, he subsequently issued an order, as judge of probate, 
directing the payment, among other things, of his own charges for services 
at the trial. We understand him to make to this allegation the purely 
technical answer that the suit was a proceeding in rm, not brought against 
the administrator, but against his property, and so not within the letter of 
the statute. But, although in its inception the proceeding was in form 
against the vessel, it was in substance a suit against the administrator. It 
was brought to collect a debt secured on his property; and, from the time 
he appeared to defend, it was carried on against him as a party.” 

We consider Judge Day’s conduct in this case a violation, 
not merely of the spirit, but of the letter, of the law. If not 
a violation of the letter of the law, then it is not impeachable, 
and can only be reached by proceeding for an address. In any 
view, it deserves the severest censure. 

4. In 1873, in proceedings for partition in which Reuben Young and Enos 
R. Young were parties. 

Reuben Young brought a petition for partition in the pro¬ 
bate court of Barnstable. On the return-day, Judge Day 
appeared to have the copy of the order of notice which had 
been served upon the respondent. He claimed that there had 
been no notice served ; that he had been informed that there 
was a dispute as to the title; and, against the strong objection 
of the petitioner, he dismissed the case on that day, although 
no one had entered an appearance, or was present on behalf of 
the respondent. The petitioner immediately brought suit for 
partition, in the superior court; and Judge Day appeared as 
counsel for the respondents, and acted for them until the case 
was disposed of (pp. 248, 252, 462). If the title was in question, 
Judge Day had a perfect right, and was in duty bound, to dis¬ 
miss the case ; but in dismissing the case in the manner he did, 
and in subsequently acting as counsel in the same matter, he 
gave just cause for suspicion, and distrust in regard to his action 
in the probate court. 

The fifth specification was waived. 

6. In 1876, in reference to the will of Jonathan Kelly. 

The will of Jonathan Kelly was probated by said probate 
court, March 9, 1858. His wife Elizabeth was appointed 
executrix. He left one child Susannah, who had four children, 
all living in Barnstable County, and some of whom were minors. 


SENATE —No. 150. 


xi 


1882.] 

Soon after the death of Elizabeth, David Aikin asked Judge 
Day’s opinion on the will of Jonathan (p. 236). Judge Day 
gave a written opinion (p. 237), dated March 15, 1876. Aikin 
was subsequently appointed administrator April 18, 1876. He 
paid Judge Day for his opinion ten dollars, which he subse¬ 
quently charged in his administration account as money paid 
J. M. Day for services and advice. Judge Day objected to his 
name appearing in the account, and it was erased. The charge 
was then allowed. Judge Day claimed that it was a proper 
charge, on the ground that Aikin was not, at the time of giving 
the opinion, the administrator (p. 461). We consider this a 
violation of the spirit and purpose, if not the letter, of the law. 

If the advice and services were not rendered to the admin¬ 
istrator, the action of Judge Day in allowing it in the account 
was improper. If it was a charge for advice to theadministra- 
tor, which should have been allowed in the account, then the 
giving of that advice and receiving pay for it was illegal and 
improper. 

Under the seventh specification, it appeared that the money 
paid to Judge Day was for legal advice and services rendered 
to the deceased, and not to- the administrator (pp. 103, 129, 
131, 169, 480). The evidence did not sustain this specification. 

8, In 1878, in the case of Samuel Snow, guardian of Ada Stevens, in 
reference to real estate claimed by Morse & Holmes. 

This was a sale by the guardian of real estate of the ward 
for the purpose of rectifying. a defect in a previous convey¬ 
ance by an administrator. The proceedings were instigated by 
Morse & Holmes, the former purchasers, and were authorized 
by Judge Day, who advised the guardian how to proceed in 
the matter. For this advice Judge Day charged and received 
the sum of ten dollars, which was paid by the said purchasers 
to the guardian, and by him to Judge Day (pp. 232, 338, 468, 
474). 

Judge Day’s action in this matter was clearly within the 
prohibition of the statute. He acted as counsel for the guardian 
or for the purchaser, or for both ; and, in any case, his action 
was illegal. 

9. In 188Q, in the case of Mary M. Goodspeed, administratrix of the 
estate of Levi L. Goodspeed. 



Xll 


HEARING —JOSEPH M. DAY. 


[May, 


In this case it appeared that Judge Day was frequently con¬ 
sulted, and gave advice in regard t the settlement of said 
estate. Most of the advice was gi'v^.i ctud consultations had 
with Charles F. Goodspeed, one of the children of said Levi, 
and then a minor under guardianship of one Joseph P. Whit¬ 
man. His mother, Mary M. Goodspeed, was administratrix of 
the estate of said Levi, and also guardian of another son, named 
George (pp. 103,141). The guardians and administratrix were 
appointed by Judge Day. The matter about which Judge Day 
was consulted chiefly concerned a sale of the property of the estate 
to one Proctor (pp. 142, 143). In the Proctor controversy the 
Goodspeeds had no counsel, and went to no one for advice 
except Judge Day, until January or February, 1881 (p. 144), 
when Judge Day told Charles he didn’t care to have any thing 
more to do with the matter (p. 144). Judge Day asked and 
received of Charles fifty dollars for services, and gave a receipt 
to him in full Oct. 21, 1880 (pp. 144, 147). Judge Day 
denied that he ever acted as counsel for the administratrix or 
guardian (p. 481), and claimed that the money was paid for 
advice given to Charles personally, and in no way relating to 
the estate (pp. 484, 507) ; but it appeared from the testimon} T 
of Charles, and was not denied by Judge Day, that, at the time 
the fifty dollars was paid and the receipt given, Judge Day 
was asked by Charles how it should be divided; and Judge 
Day said twenty dollars should be charged to him, twenty dol¬ 
lars to his brother, and ten dollars to his mother (pp. 510, 
545). It seemed to us, from the whole evidence, that Judge 
Day was acting as counsel in the settlement of this estate ; and 
that, while he did all in his power to protect the rights and 
aid and assist the Goodspeeds in their dispute with Proctor, he 
knew, or ought to have known, that his action was illegal. 

10. In 1881, in the case of Nathan Crocker, administrator on the estate 
of Nathan Crocker, where the town of Barnstable was a party. 

This administrator was appointed by the probate court of 
Barnstable. A petition was filed by him Dec. 31, 1880, with 
the county commissioners, asking for an abatement of taxes 
assessed on the estate of his intestate by the town of Barnsta¬ 
ble (pp. 224, 225). Judge Day, at the time appointed for a 
hearing, was present, and acted as counsel for the assessors be¬ 
fore the county commissioners (pp. 225, 551), and secured a 
postponement of the hearing. Judge Day testified that he made 


1882.] 


SENATE —No. 150. 


• • • 
Xlll 

no charge and received no pay for his services. His action in 
this case was a direct violation of the statute prohibition. 

11. In 1870, in the case of Bradford L. Crocker, executor of will of Bet¬ 
sey Kelley. 

Bradford L. Crocker and Hiram Nye were appointed execu¬ 
tors of the will of Betsey Kelley by the probate court of Barn¬ 
stable, Jan. 14, 1868. A dispute arose between the executors 
about a barn on the real estate. Crocker consulted Judge Day, 
and paid him five dollars (p. 174). From the account filed by 
him, and allowed by Judge Day, it was impossible to deter¬ 
mine whether this charge was included in the account (pp. 
384, 387, 388). Judge Day admitted that Crocker came to 
him time after time about his quarrels with the other exec¬ 
utor, but denied that he ever was paid a dollar by Crocker for 
advice to him as executor (p. 486). We feel compelled to find 
that five dollars was paid to Judge Day by Crocker (pp. 190, 
544), and that it must have been paid for advice to Crocker as 
executor of the will of Betsey Kelley, there being no evidence 
that Crocker ever consulted Judge Day in regard to any other 
matter. 

12. In the case of Isaiah Gifford, guardian of the estate of Mary 
Stid. 

Isaiah Gifford was appointed guardian of Mary Stid an 
insane person, by Judge Day, Aug. 8, 1871 (p. 122). Mary 
Stid became insane directly after the death of her husband, 
and was his only heir (pp. 123, 125). A note signed by the 
husband was brought to the guardian after his appointment, 
and suit was threatened if he did not pay it (pp. 122, 124). 
He employed Judge Day as attorney to settle the matter. 
Judge Day did settle it, and was paid by the guardian for his 
services the sum of thirty dollars and six cents. Gifford 
charged this in his final account as attorney’s fees; and the 
account and charge were allowed by Judge Day Feb. 13, 1877 
(p. 122). Mary Stid consented to the allowance of the ac¬ 
count (p. 494). Judge Day’s defence is, that he was not 
aware that Gifford was guardian ; that he never gave any advice 
to Gifford as guardian, or received any pay from him ; and that 
Mary Stid signed the account (p. 494). In regard to this, we 
find that he must have known that Gifford was guardian; that 
he did give him advice, and act for him as such guardian; and 


XIV 


HEARING —JOSEPH M. DAY. 


[May, 


that the signing of the account by Mary Stid made no differ¬ 
ence whatever to the illegality of the act. We cannot conceive 
of a clearer and more direct violation of the statute than Judge 
Day’s action in this case. 

13. In the case of Varanus B. Nickerson v. Edward E. Crowell et als ., 
in the Superior Court for the county of Barnstable, during the years 1867, 
1868, 1869, and 1870, which suit or matter depended upon and related to 
certain decrees and orders made and passed by him as judge of the court of 
insolvency iti the case of Varanus B. Nickerson. 

Varanus B. Nickerson was adjudged insolvent by the court 
of insolvency for the county of Barnstable Aug. 23, 18G4. 
Assignees were chosen, and the assignment issued Sept. 13,1864 
(p. 162). All proceedings were vacated, and stayed b} r the 
court May 16, 1875 (p. 163). Two years afterwards, in May, 
1867, Judge Day brought the suit specified, upon a policy of 
marine insurance belonging to said Nickerson prior to his in¬ 
solvency, and alleged the loss to have taken place in February, 
1861. The defence set up the insolvency of the plaintiff, and 
claimed that the right of action had been transferred to his 
assignees in insolvency. The plaintiff, by his attorney Judge 
Day, replied that the decree of the insolvency court vacating 
the proceedings had revested the policy in the plaintiff (p. 171). 
It is claimed-in this case that Judge Day acted as attorney in a 
suit which depended on and related to a decree passed by him. 
We think that the statute does not apply to a suit of this kind. 
The suit did not depend upon or relate to the decree, but to 
and upon the policy of insurance. The validity of the decree 
was not and could not be an issue. The only question to be 
decided was its existence. 

Specification 14 was waived. 

Charge I. was fully sustained by the facts above stated under 
the various specifications. 

Charge II. covers substantially the same ground as charge I., 
and relates to the same acts. The facts and law applicable to 
this charge have been fully set forth under the preceding charge 
and specifications. 

Charge III. alleges,— 

“ That he has been privy to the taking of illegal fees by the former register 
of said court, and has counselled and advised the same.” 

It had become the custom for registers of the probate court 
of Barnstable under Judge Day to prepare certain court-papers 


1882.] 


SENATE —No. 150. 


xv 


for administrators and guardians, and charge therefor the sum 
of one dollar (pp. 214, 215). This charge was allowed in the 
account of the administrators and guardians by the court (p. 
215). This was undoubtedly a great convenience to parties (p. 
217), but, if not forbidden by the statute, was at least in viola¬ 
tion of the register’s official oath (Gen. Stat. chap. 119, sects. 7, 
9, 18). To make the law clear upon this point, the statute of 
1879, chap. 292, was enacted. It provided that — 

“ No judge, register, or assistant register of probate and insolvency in 
any county, or any person engaged in the performance of any of the duties 
of the probate office in any county, shall be interested in or benefited by 
the fees or emoluments arising from any suit or matter pending before the 
probate court of such county.” ... 

After this statute was passed, Mr. Thacher, then register of 
the court, spoke to Judge Day about this charge of one dollar. 
At that time Judge Day neither counselled him to continue 
the charge, nor did he advise him that it was illegal or improper 
(pp. 215, 216, 477, 478). Thacher continued to make the 
charge until stopped by the bank commissioner in March, 1881 
(pp. 214, 230). We do not consider Judge Day legally respon¬ 
sible for this illegal action of his register; but we do find that 
he had knowledge of the abuse, and allowed it to continue 
without any effort to prevent it. 

Charge IV. alleges, — 

“ That he was privy to and consented to the violation of law by said 
former register of probate in not keeping a cash-docket open at reasonable 
times to the inspection of the public, and in not accounting for and paying 
over the fees received by him quarterly, as required by law, to the treasurer 
of the Commonwealth.” 

Charge V. alleges, — 

“ That he did not audit said register’s quarterly accounts, and direct 
what sums he should pay over to the.treasurer of the Commonwealth, as the 
law required.” 

The evidence offered upon these charges showed that Charles 
Thacher 2d, who was register of probate and insolvency for the 
county of Barnstable for upwards of twelve years, — from April 
1, 1869, until Nov. 1, 1881, — kept no cash-docket open to pub¬ 
lic inspection, and from 1874 until his resignation rendered but 
one account to the treasurer of the Commonwealth (pp. 166, 



XVI 


HEARING —JOSEPH M. DAY. 


[May, 


287, 288). Judge Day never audited any account of said regis¬ 
ter, and it did not appear that any was ever presented to him 
for that purpose (pp. 166, 491). At the time Thacher ceased 
to be register, there was a deficiency in his accounts of about 
three hundred dollars, which, through Judge Day’s instrumen¬ 
tality, was obtained, and paid over to the Commonwealth (p. 
492). In these matters Judge Day and said register neglected 
to perform the duties expressly imposed upon them by statute. 
Chap. 137 of the Acts of 1862 provides that — 

“ The register of the court of insolvency in each county shall keep a cash- 
docket, which shall at all reasonable times be open to the inspection of the 
public; and the judge shall audit the register’s quarterly accounts, and 
direct what sums shall be paid over to the treasurer of the Commonwealth.” 

Judge Day says he was ignorant of this law (p. 491). This 
is not a proper excuse, especially in view of the provisions of 
chap. 95 of the Acts of 1861, that — 

“ The judges of the probate court and of the court of insolvency, in their 
several counties, shall as often as every six months inspect the doings of the 
registers of said courts, and see that the records and files are made up sea¬ 
sonably and kept in good order.” 

Charge YI. alleges that — 

“ In 1878, on the cars near Cohasset Narrows; in 1879, at Davis’s hotel 
in Falmouth; and about 1873, on the cars going from Boston to Barnstable; 
and at other times and places, — he was intoxicated under circumstances 
calculated to bring his office into contempt.” 

The evidence upon this charge is somewhat vague and unsatis¬ 
factory ; and in view of the character of the offences alleged, 
we do not feel justified in finding that the charge is sustained 
by the testimony. 

Charge VII. alleges that — 

“ In 1871 he treated Mary C. Paddock at the probate court in Barnstable 
with discourtesy and rudeness; and in 1879 he treated Clarissa Nickerson, 
executrix of the will of Henry Nickerson, and a suitor in said court, with 
such harshness and rudeness that she fainted.” 

The evidence showed in the case of Mary C. Paddock, that in 
1871 she went to Mr. Day as judge of probate, to have her 
insane sister committed to a lunatic asylum (p. 265). She sup¬ 
posed that her papers were in proper form for the judge to 
issue a warrant for commitment (pp. 266, 267, 311). It 
seemed, however, that such was not the case; and Judge Day 


1882.] SENATE —No. 150. xvii 

refused to act until notice had been given and a hearing had 
(pp. 458, 477, 497). The conduct of Judge Day on this occa¬ 
sion was not courteous and considerate towards Miss Paddock 
(pp. 266, 479). 

In the case of Clarissa Nickerson, it appeared that Judge 
Day spoke to her, as she says, “rather harsh” at the probate 

court, and that she fainted ; but we find that the cause of her 

0 

fainting should not be ascribed so much to Judge Day’s act as 
to her feeble physical condition, she having been subject to 
fainting for forty years (pp. 120, 121). 

Charge VIII. is not sustained by the testimony. 

Charge IX. alleges — 

“ That in 1861, while judge of probate, said Day was appointed collector 
of customs for the district of Barnstable, with the understanding that he 
would resign the office of judge, but that he did not so resign ; that, while 
holding both said offices, he corruptly demanded and received from officers, 
recommended for appointment by him as such collector, sums varying from 
thirty-five dollars to one hundred dollars each, amounting in all to about 
fifteen hundred dollars; that, after holding both said offices for some months, 
he resigned said collectorship for a pecuniary consideration, and with the 
understanding that said officials already then appointed on his recommenda¬ 
tion should not be disturbed during their terms of office.” 

Under this charge, a deposition of one David Bursley was 
admitted in evidence, which will be found on p. 369 of the 
evidence. Bursley, at the time of taking the deposition, and at 
the close of the hearings on the case, was dangerously ill. 
After Bursley had completed his direct evidence, he signed the 
deposition ; and the magistrate adjourned the hearing until a 
future day, at the request of the remonstrants, and against the 
wishes of the petitioners. At the time to which the examina¬ 
tion of Bursley was adjourned, and subsequently, the family 
of Bursley, acting under the advice of his physician, refused to 
allow the parties to proceed further in taking the deposition, 
on account of the extreme weakness and physical debility of 
the deponent (p. 344). We admitted the deposition in its 
incomplete form against the objection of the remonstrants (4 
Gray, 343 ; 3 Sum. 98). The deposition of David Bursley, if 
true, conclusively proves charge IX. Many of its essential state¬ 
ments are corroborated by the testimony of other witnesses, 
and more especially by the testimony of Judge Day himself. 
Apart from the deposition, and on the other testimony in the 
case, we find the following facts : — 





xviii HEARING —JOSEPH M. DAY. [May, 

In the year 1861, Judge Day, while judge of probate, was 
appointed collector of customs for the port of Barnstable 
(p. *198). Bursley distributed petitions for Judge Day’s ap¬ 
pointment, and was instructed by Judge Day to say to people 
that he would resign the office of judge of probate and insol¬ 
vency (p. 504). Judge Day, on receiving his commission as 
collector, sent to Gov. Andrew his resignation as judge. The 
resignation proved defective ; and, after an interview with Gov. 
Andrew, Judge Day decided to resign the office of collector, 
and hold that of judge (pp. 499, 500). While he was collector, 
Judge Day, according to his own testimony, received from the 
officers whom he appointed about seven hundred dollars (p. 
513), which he put into his own pocket, as he claimed, to reim¬ 
burse him for money which he had paid out in previous cam¬ 
paigns (p. 518). This money was in some cases deducted by 
the deputy collector, Chipman, from the salaries of the men, 
and paid over to Judge Day (p. 515), who undoubtedly sug¬ 
gested what should be asked of each man (p. 516). In the 
case of Gilbert Crocker, one of the officers, Judge Day himself 
gave the man to understand, at the time the first quarter’s 
salary was due, that it was customary for all holding a posi¬ 
tion like his (Crocker’s) to leave a sum of money. Crocker 
said he was poor, with quite a family, and begged that 
Judge Day would deduct the money from the next quarter pay¬ 
ment. Judge Day “ very kindly consented to postpone the pa}^- 
ment of it till the next quarter,” and took Crocker’s note for fifty 
dollars, payable to himself. This note was paid at the next 
quarter, the fifty dollars being deducted from Crocker’s salary 
(pp. 355, 356, 358, 359). In the case of another officer, Charles 
G. Rodman, Judge Day himself deducted twenty dollars out of 
Rodman’s first-quarter salary, and sent him the balance, without 
Rodman's consent, and against his wishes (pp. 360-362, 377). 
Other officers appointed under Collector Day paid him sums 
varying from fifty to one hundred dollars (pp. 199, 200, 204, 
205, 207, 208). 

After the interview with Gov. Andrew referred to above, 
Judge Day went to see Mr. Charles F. Swift, who had been a 
rival candidate for the office of collector prior to Judge Day’s 
appointment, and who was an intimate friend of Judge Day. 
Judge Day says that he told Swift he intended to resign at the 
end of the quarter, and suggested that he (Judge Day) was 


i 


1882.] 


SENATE — No. 150. 


xix 


entitled to some consideration ; that Mr. Swift assented to this 
at once, and agreed to pay Judge Day about eighteen hundred 
dollars (p. 501) as some recognition of Judge Day’s “attitude 
towards the matter,” and as a “friendly act of consideration ” (pp. 
514,525). At the suggestion of Mr. Swift, Judge Day took the 
notes of James Knowles, a brother-in-law of Swift, for this 
amount; and the notes were finally paid at different times 
(pp. 513, 514). These are the principal facts in this extra¬ 
ordinary transaction, and are found by us chiefly upon the 
testimony of Judge Day himself. They strongly and substan¬ 
tially corroborate the deposition of David Bursley (p. 503). 

We believe that charge IX. is substantially proved by the 
evidence, and Judge Day’s conduct in the matter deserves the 
severest condemnation. The United States statute provided 
that — 

“ No account for the compensation for services of any clerk or other per¬ 
son employed in any duties in relation to the revenue shall be allowed until 
such clerk or other person shall have certified on oath or affirmation that the 
same services have been performed; that he has received the full sum therein, 
charged to his own use and benefit; and that he has not paid, deposited, nor 
assigned, nor contracted to pay, deposit, or assign, any part of such compen¬ 
sation to the use of any other person, nor in any way, directly or indirectly, 
paid or given, or contracted to pay or give, any reward or compensation for 
his office or employment, or the emoluments thereof” (Act of 1822, chap. 
107, sect. 16; Rev. Stats, sect. 2693). 

The officers who paid him these sums were by law required 
to take the oath above prescribed; and Judge Day must or 
ought to have been cognizant of that fact when he caused the 
money to be deducted from their salary. The entire twenty-five 
hundred dollars which he admits he received during the few 
months he was collector was in addition to his fees as collector, 
and inured to his own benefit. He claimed, that, of this sum, 
he had paid out about one thousand dollars (pp. 513, 519) for 
campaign expenses. We regret to say that we do not believe 
Judge Day upon this point. His positive statement in regard 
to the payment of one hundred and forty dollars to Louis L. 
Sellew, whom he had not seen for twenty years, and of whose 
whereabouts he could give no information; the appearance and 
positive contradiction of this testimony by Mr. Sellew; and the 
speedy retraction of the same by Judge Day after Mr. Sellew 
had left the stand, — painfully impressed the Committee with 
the evasion, if not untruthfulness, of Judge Day upon this 
matter of expenditure. 



XX 


HEARING — JOSEPH M. DAY. 


[May, 


In hearing this matter, the Committee have endeavored to 
carefully protect the rights of the respondent, who was person¬ 
ally present at the hearings. Mr. Webster’s objection to 
removal by address, cited above, would not apply to the 
method pursued in this case. The matter of the accusation 
against Judge Day was specifically made known to him, and he 
was given an opportunity to be fully heard. 

The facts as they appeared to the Committee conclusively 
show that Joseph M. Day is not a fit person to be judge of pro¬ 
bate in Massachusetts. This Commonwealth has just cause to 
be proud of the character and reputation of her judiciary. We 
are bound to see that its standard of excellence is maintained. 
Judge Day’s conduct shows a continuing disregard of whole¬ 
some laws and violation of the rules of official propriety and 
decorum. 

He was not ignorant of the law. His actions were not the 
result of inadvertence. In two cases, at least, after the illegal¬ 
ity and impropriety of his acts were called to his attention, he 
continued to act in utter disregard of law and decorum. 

The offence proved against Judge Day under charge IX., had 
it occurred within a recent period of time, would alone be suf¬ 
ficient ground for his removal. As it stands, it is a link in the 
chain of the man’s character. He claimed at the hearing that 
in his action as collector he had done nothing illegal or im¬ 
proper. 

In view, then, of his repeated violations of law and propri¬ 
ety, and of the general character of the man as developed 
by the testimony, and more especially in view of the impor¬ 
tant and almost sacred duties which devolve upon a judge 
of probate as the guardian and protector of the widow and the 
fatherless, we favor his removal from the office which he holds. 

The right to remove him by address must be conceded. We 
have no fear of such action becoming a dangerous precedent — 
we fear much more the precedent of retaining an unworthy 
judge who has lost the public confidence. 

Your Committee, therefore, respectfully recommend that the 
accompanying Address be sent to the Governor, requesting him, 
with the consent of the Council, to remove Joseph M. Day from 
the office of the judge of probate and insolvency for the county 
of Barnstable. 


1882.] 


SENATE — No. 150. 


xxi 


And your Committee further recommend that a Joint Com¬ 
mittee, consisting of two on the part of the Senate and five on 
the part of the House, be appointed to present said address to 
the Governor. 

ANDREW J. JENNINGS, 
GEORGE A. BRUCE, 

Of the Senate. 
EDWIN N. HILL, 
EDWARD D. G. JONES, 
NATHAN A. COOK, 

JOHN P. COOMBS, 
HOBART P. STREET, 

Of the House 


HEARING —JOSEPH M. DAY. 


[May, 


xxii 


Commonroealtl) of ittassacljusctts. 


ADDRESS. 

To his Excellency John D. Long, Governor of the Commonwealth of Massa¬ 
chusetts. 

The two branches, of the Legislature, in General Court 
assembled, respectfully request that your Excellency would be 
pleased, with the consent of the Council, to remove Joseph M. 
Day from the office of judge of probate and insolvency for the 
county of Barnstable* 



1882.] 


SENATE —No. 150. 


xxiii 


dTcimmoinocoltl) of Jllassaffiusetts. 


Senate, Mav 9, 1882. 

We the undersigned, a minority of the Joint Special Com¬ 
mittee to whom was referred the petition of Laban Baker, 2d, 
and seven others, praying that both Houses of the Legislature 
may address the Governor and Council, and recommend the re¬ 
moval of Joseph M. Day from the office of Judge of Probate 
and Insolvency for the county of Barnstable, and the remon¬ 
strance of 1,784 citizens of said Barnstable County against the 
same, recommend that the petitioners have leave to withdraw, 
for the following reasons : — 

The Constitution of the Commonwealth provides, Chap. I., 
Sect. II., Art. VIII.,— 

“ The Senate shall be a court with full authority to hear and determine 
all impeachments made by the House of Representatives against any officer 
or officers of the Commonwealth, for misconduct and mal-administration in 
their offices. But, previous to the trial of every impeachment, the members 
of the Senate shall respectively be sworn, truly and impartially to try and 
determine the charge in question, according to the evidence.” 

The Constitution also provides, Chap. III., Art. I., — 

“ All judicial officers, duly appointed, commissioned, and sworn, shall 
hold their offices during good behavior, excepting such concerning whom 
there is different provision made in this Constitution: provided, nevertheless, 
the Governor, with consent of the Council, may remove them upon the ad* 
dress of both Houses of the Legislature.” 

This power of removal by address was never intended by the 
framers of the Constitution to apply to the trial of charges for 
misconduct and mal-administration in office, which are expressly 
made the subject of impeachment, it was meant to cover cases 
where a judge became incapacitated without fault, and was 






XXIV 


HEARING —JOSEPH M. DAY. 


[May, 


adopted, not for the purpose of removing an officer guilty of bad 
behavior, but for the express purpose of removal during good 
behavior. 

It could not have been intended by the framers of the Consti¬ 
tution that removal by address should become co-extensive with 
impeachment: otherwise the penalties would have been per¬ 
mitted at least to be co-extensive also. 

The framers of the Constitution might have provided that a 
person removed from office by address might be disqualified “ to 
hold or enjoy any place of honor, trust, or profit under this 
Commonwealth; ” and we think they would have so provided, 
as they did in the case of impeachment, had they intended re¬ 
moval by address to apply to impeachable offences. 

Removal by address is a special and distinct process from im¬ 
peachment, and was intended to apply to cases of natural dis¬ 
ability by some visitation of God, as loss of reason, or old age 
and causes of a like nature, and not to apply to or include cases 
of moral disqualification and criminal conduct. 

Removal for mal-administration or misbehavior is not a mat¬ 
ter of will and pleasure, it is a matter of trial and ascertainment 
under oath, face to face with the accused and witnesses, and 
guarded by the strict rules of evidence, which are adopted as 
well for the protection of the defendant as in aid of the pros¬ 
ecution. 

But removal by address is a matter simply of legislative voli¬ 
tion and pleasure. It has always been regarded as a danger¬ 
ous power which might be exercised in a manner never 
contemplated by its creators, and which was only guarded by 
the good sense of the people. Happily for the welfare of the 
Commonwealth, the good sense of the people has thus far been 
sufficient to preserve the independence of the judiciary. 

A fundamental principle of our system of government is ex¬ 
pressed in Art. XXX. of the Declaration of Rights, which reads 
as follows : — 

n Jn the government of this Commonwealth, the legislative department 
shall never exercise the executive and judicial powers, or either of them; 
the executive shall never exercise the legislative and judicial powers, or 
either of them; the judicial shall never exercise the legislative and execu¬ 
tive powers, or either of them: fo the end it may be a government of 
laws, and pot of men,” 


1882.] 


SENATE —No. 150. 


XXV 


This was intended to insure the independence of the three 
branches of the government, viz., the legislative, the executive, 
and the judicial. But if the judges are to hold their seats at 
the pleasure of the Legislature and the Governor and Council, 
the independence of the three branches is at an end, and Massa¬ 
chusetts can no longer pride herself, as she justly does to-day, on 
a judiciary not only able, but impartial and unaffected by politi¬ 
cal considerations. 

Besides these paramount considerations of public policy, the 
process of removal, in a case like the present, where the facts and 
the law are disputed, has peculiar elements of injustice to the 
accused; in that he is heard by one tribunal, viz. a committee, 
and tried by another, viz. the two Houses of the Legislature 
who have not seen the witnesses; and that, although the sentence 
of removal can be executed by the Governor and Council upon 
a concurrent vote, yet a failure to obtain a concurrent vote, as 
was shown in this very case last year, does not operate as an 
acquittal, but the accused is still liable to be tried again year 
after year upon the same charges.* 

For these reasons, we are of opinion that if this process of 
removal by address ought ever to be resorted to, except in cases 
of disability, it should be only in exceptional cases, where 
grave charges affecting the fitness of the accused to hold his 
office, but not properly the subject of impeachment, are dis¬ 
tinctly proved. And we are furthermore of the opinion that 
the petitioners have wholly failed to sustain any such charges in 
the present cane. 

Most of the charges clearly relate to misconduct and mal¬ 
administration in office, and, if proved as alleged, would be 
properly the subject of impeachment. But we are of opinion 
that no evidence was presented under any of the charges which 
would justify us in recommending Judge Day’s removal, even if 
none of the charges related to impeachable offences. 

Joseph M. Day was appointed judge of probate for Barnstable 
County in 1858, twenty-four years ago; and no complaint was 
made against him until the petition for his removal was pre¬ 
sented to the Legislature of 1881, although the charges on 
which the petitioners rely cover a period running back as far as 
1861. 

The first class of charges alleges that he improperly and 




XXY1 


HEARING —JOSEPH M. DAY. 


[May, 


illegally acted as counsel for executors, administrators, and 
guardians appointed by bis own court. Under this head are 
fourteen specifications. Some of these specifications the peti¬ 
tioners wholly failed to prove, and of the others it may be said 
generally, that they related to what were at most technical 
violations of the statute on this subject, or were merely ques¬ 
tions of propriety about which men might fairly differ in opin¬ 
ion. Most of them were considered last year as .special cases 
under the general charge numbered VI., and were included in 
the finding of the committee of last year giving the petitioners 
leave to withdraw. 

The provision of law applicable to these charges is found in 
the Public Statutes, chap. 158, sect. 21, and is in these words : — 

“No judge shall be retained or employed, as counsel or attorney, either 
in or out of court, in any suit or matter which may depend on, or in any way 
relate to, a sentence, decision, warrant, order, or decree made or passed by 
him; nor for or against an executor, administrator, or guardian appointed 
within his jurisdiction, in a suit brought by or against the executor, admin¬ 
istrator, or guardian as such; nor in a suit relating to the official conduct of 
such party; nor for or against a debtor, creditor, or assignee, in a cause or 
matter arising out of or connected w'ith any proceedings before him; nor in 
an appeal in any such cause or matter.” * 

The acts which were claimed to be illegal appear to have been 
such as might have been done in perfect good faith by any judge 
of probate engaged in the active practice of the law in his own 
county, or to have been cases where substantial justice was done 
and the violation of the statute was purely technical. 

In illustration of this we will take two cases. 

Specification 8 in Charge I. is as follows : — 

“In 1878, in the case of Samuel Snow, guardian of Ada Stevens, in 
reference to real estate claimed by Morse and Holmes.” 

This was a matter where Morse & Holmes purchased in 1873, 
of Asa Bliss, a former guardian of Ada Stevens, a cranberry- 
meadow, and paid therefor the sum of three hundred dollars. 

Several years after this, Mr. Samuel Snow was appointed 
guardian of Ada Stevens, and in 1878 Morse & Holmes ascer¬ 
tained that their title to this property was defective by reason 
of some mistake or informality in the sale. Morse & Holmes 
had gone on and improved the property to the amount of 
two thousand dollars; and their agent, Mr. Cahoon, saw Mr. 
Snow with a view of inducing him to take some steps whereby 
Morse & Holmes’ title in the property might be perfected. 


1882.] SENATE —No. 150. xxvii 

Mr. Snow went to Judge Day to find out tlie best way to bring 
this about. Judge Day advised that the property be advertised 
anew and sold at auction, subject to the improvements made by 
Morse & Holmes. This was done, and Morse & Holmes bid it 
off for one dollar. 

Mr. Snow received from Morse & Holmes twenty-five dollars 
for the expenses in the matter. When Judge Day ascertained 
that Mr. Snow was acting for Morse & Holmes, and not merely 
asking instructions as to his dut}" as guardian, he told Mr. Snow 
that he might collect of Morse & Holmes ten dollars for the 
advice. The guardian paid this ten dollars to Judge Day, out 
of the twenty-five dollars which he had received from Morse 
& Holmes, and in his account as guardian made no charge, and 
gave no credit except to credit the one dollar for which the 
property was bid off. (See evidence of Samuel Snow, pp. 233- 
237, and evidence of Joseph M. Day.) 

Now, this may be a technical violation of the statute .which 
is above quoted, in that in acting as he did for Morse & Holmes 
Judge Day disqualified himself to pass upon the guardian’s 
account, which Mr. Snow rendered in the Probate Court, and 
in which he charged himself with the one dollar received from 
the sale of the property. 

But, if this is a violation of the statute, it seems to us to be 
a violation of the letter, and not the spirit, of the statute. 

Judge Day evidently did not think he was acting in any way 
for or against the estate of Ada Stevens or her guardian, in 
charging Morse & Holmes the ten dollars for his advice and 
services in the matter. 

» 

Specification 6 is as follows: — 

“ In 1876, in reference to the will of Jonathan Kelley.” 

The facts in this case were, that in 1858 Elizabeth Kelly 
was appointed by Judge Marston executrix of the will of her 
husband, Jonathan Kelly. In 1876, after the death of Eliza¬ 
beth Kelly, David K. Aikin went to Judge Day for the pur¬ 
pose of getting his opinion upon the construction of Jonathan 
Kelly’s will, for the reason, as Aikin says, that “ he felt a 
little anxiety to know how the property would go under the 
will after her (Elizabeth Kelly’s) death.” Judge Day gave 
a written opinion to Mr. Aikin in regard to the construction 
of the will, and charged him ten dollars therefor. 


xxviii HEARING —JOSEPH M. DAY. [May, 

« 

Mr. Aikin afterwards was appointed administrator of the 
estate of Elizabeth Kelly; and in his account which he rendered 
in the Probate Court upon her estate, was a charge of the ten 
dollars which he had paid Judge Day for this opinion given 
before Aikin was appointed administrator. 

Judge Day stated to Mr. Aikin that he gave the advice to 
him personally, and it would not be. proper for him to charge it 
in his account as administrator, and asked him to strike out 
his (J udge Day’s) name from the account; but as to the amount 
of ten dollars, if the only heir requested that it be paid Mr. 
Aikin, and allowed in his account, then he would allow it, “but 
that was a matter they must arrange among themselves.” 
Strictly this did not belong in the account, but Judge Day only 
allowed it to be inserted on the ground of an express agreement 
between the administrator and the only person interested in the 
estate. (See evidence, pp. 236-239, and 461.) 

We have cited these two cases because they are cases which 
the petitioners rely upon in support of their charges, and the 
facts are substantially agreed to, and they fairly illustrate the 
way Judge Day has violated the statutes in the instances re¬ 
ferred to in the other charges which the petitioners claim to 
have been sustained. 

In no case was it shown that Judge Day acted unjustly or 
did injury to any person. Not a single fact was proved incon¬ 
sistent with his uprightness as a judge, while his ability and 
knowledge of the law were not disputed. 

Upon the charges which relate to his allowing the register of 
probate to take illegal fees, and his not auditing the register's 
quarterly accounts, there appears to be no ground for removal. 

The register, under Judge Marston, used to charge twenty- 
five cents for filling out petitions and for postage, and this was 
the custom for the first few years after Judge Day was ap¬ 
pointed. Then there was more formality all over the State in 
matters of petitions and other blanks, and Jonathan Higgins, 
one of the persons principally interested in the removal of 
Judge Day, who was then register, began to charge one dollar 
for such services. Higgins was succeeded as register by 
Charles Thacher, jun., who continued this charge of one dol¬ 
lar. None of the money so received by the register ever in 
any way came to Judge Day, and this fee of one dollar was 
never put into the register’s account. It was a private arrange¬ 
ment made by the register on his own responsibility. 


1882.] 


SENATE —No. 150. 


XXIX 


The statute of 1862, chap. 13T, required registers of the 
Court of Insolvency to keep a cash docket, and that the judge 
of the court should audit the register’s quarterly accounts. 

Judge Day went to the war in September, 1862, and within 
a few months after the passage of the act; and he says his at¬ 
tention was not called to this act until recently, and, when it 
was called to it, he at once saw to it that every cent due from 
the register was paid into the treasury of the Commonwealth. 

The charges as to drunkenness at certain times and places 
were wholly unproved. 

The charges as to rudeness to Mary C. Paddock and Clarissa 
Nickerson ludicrously failed of proof. 

Upon the charge of wrongfully receiving fifty dollars of Alice 
Crowell, it appeared that Judge Day not only acted legally, but 
that he rendered her great and successful services for which he 
made a very moderate charge. 

The ninth charge is the one on which the petitioners seem 
chiefly to rely. It relates to the transactions of Judge Day in 
the office of collector of the port of Barnstable in 1861. It 
appears that when collector in 1861, being then a prominent 
Republican politician, he allowed to be assessed upon the subor¬ 
dinate officers appointed by him, political contributions, which 
were deducted out of their first quarter's pay, and that he ap¬ 
propriated these contributions partly to pay out to other persons 
for political services, and partly to reimburse himself for money 
paid out by him in the political campaign of the previous 
autumn, which resulted in the election of Abraham Lincoln as 
president. He says that after he had received all the contribu¬ 
tions he was about three hundred dollars out of pocket on this 
account. 

We do not undertake to justify these acts; but, even if they 
were pertinent to the question under consideration, it would be 
hard to hold Judge Day responsible for the practice of assessing 
appointees in the federal offices which prevailed in the Republi¬ 
can party at that time, and has in one form or another con¬ 
tinued ever since. Dr. Gould, one of the principal witnesses 
for the petitioners on this charge, testified (p. 196) that he has 


XXX 


HEARING —JOSEPH M. DAY. 


[May, 


made similar payments to other collectors since for the same pur¬ 
poses. If we are to condemn Judge Day on this ground, it must 
be because he did not rise superior to the prevailing practice. 

Considering that civil service reform had not then been in¬ 
vented, and that these acts were done twenty-one years ago in 
an office under the United States government, they appear to 
us to have no particular bearing on the question whether Judge 
Day shall be removed from the office of Judge of Probate in 
1882. 

The same considerations apply to his transaction with Charles 
F. Swift in 1861. This seems to have been a trade and political 
bargain between the two men. Judge Day had been requested 
by Gov. Andrew to resign the collectorship and continue 
in the office of judge of probate. The collectorship was worth 
from twenty-five hundred to four thousand dollars a year; the 
salary of judge of probate was then, as now, only one thousand 
dollars. Mr. Swift promised that Judge Day should have 
eighteen hundred dollars, which was obviously not a full com¬ 
pensation for the pecuniary loss which Judge Day suffered by 
complying with Gov. Andrew’s request. Mr. Swift, who was 
the only candidate for the place, was appointed collector. The 
money was paid, and both men were satisfied. It appears to have 
been a private transaction between them ; and, although we do 
not wish to be understood as in any way approving of it, we do 
not see that it has any connection with Judge Day’s administra¬ 
tion of the office of judge of probate, or any bearing upon his 
fitness or unfitness to retain that office to-day. 

JEREMIAH CROWLEY. 

Of the Senate. 
JOHN R. THAYER. 
HENRY W. SWIFT. 

Of the House. 


1882.] 


SENATE —No. 150. 


XXXI 


^knnmoniucaltl) of iitassartjusetts. 


Senate, May 9, 1882. 

• r 

The undersigned, member of the Committee to whom were 
referred the petition for the removal of Judge Day, and the 
remonstrances against the same, agrees with the minority of 
the Committee in their conclusion that the petitioners have 
leave to withdraw : — 

Of the first eight charges, those which are supported by the 
evidence relate to offences which, if proved, are proper subjects 
for impeachment. 

While admitting that the Constitution may be broad enough 
to allow removal by address for impeachable offences, yet such 
a removal seems both unjust and unwise; unjust because the 
accused ought to be accorded a trial before the body that is to 
decide the question; unwise because a dangerous precedent is 
established, suggesting an easy method of getting rid of judges 
who are for any reason obnoxious to the party in power. 

The ninth charge alone, the petitioners claim, describes an 
offence not impeachable in its nature. This relates to transac¬ 
tions over twenty years old, and this Legislature may well 
conclude not to consider them. But, supposing the charge is 
sustained, an offence committed when a man is forty years of 
age ought not to weigh very heavily against him at sixty. 

It was suggested to the Committee by the petitioners, when 
they urged the consideration of this charge, that they would 
show on Judge Day’s part aline of conduct of the same general 
character from that day to this. This has not been done. 

The undersigned does not wish to be understood as justifying 
Judge Day’s conduct in many of the instances that have been 
brought to the attention of the Committee. Many times he 
seems to have forgotten the dignity of his position, and to have 
done things not easily excusable in a judge ; but the remedy 



HEARING — JOSEPH M. DAY. 


[May, 


xxxii 

asked for, in view of all the facts in the case, seems to the sub¬ 
scriber severer than the faults committed demand. This- belief 
is strengthened by the fact, that nothing appears, during the past 
year, to show that the conduct of the judge has not been above 
reproach. 


W. A. KINGSBURY. 


PETITIONS, REMONSTRANCES, CHARGES, SPECIFI¬ 
CATIONS, PLEAS, AND ANSWER, IN THE MATTER 
OF THE REMOVAL FROM OFFICE BY ADDRESS 
OF JOSEPH M. DAY, JUDGE OF PROBATE AND 
INSOLVENCY FOR THE COUNTY OF BARNSTABLE. 


The petition of Laban Baker 2d, Francis Small, George P. 
Drew, George W. Nickerson, David Bursley, Ensign B. Rogers, 
Seth Rich, and Richard A. Atwood for the removal from office 
of Judge Joseph M. Day by address, and the remonstrances of 
Nathan Edson and 53 others, O. C. Baker and 40 others, Joseph 
Reed and 89 others, A. B. Fish and 17 others, B. F. Crocker 
and 47 others, John H. Reed and 44 others, William D. Holmes 
and 59 others, Miller W. Nickerson and 54 others, Danforth S. 
Steele and 10 others, Samuel H. Gould and 43 others, Charles 
F. Swift and 33 others, Ira S. Baker and 47 others, Isaac H. 
Loveland and 74 others, Charles H. Burgess 2d and 32 others, 
Chester Snow and eighteen others, Silas Jones and 36 others, 
Erastus O. Parker and 25 others, Lliram Harding and 24 
others, John A. Baxter and 28 others, George N. Munsell and 
52 others, Erastus Chase and 50 others, Silas Hatch and 10 
others, W. H. Simons and 31 others, Samuel Dyer and 17 
others, A. F. Crowell and 28 others, J. Raymond and 16 others, 
David Sears and 9 others, Joshua Sears and 40 others, Mason 
White and 81 others, Luther Hall and 60 others, James E. 
Gifford and 22 others, George L. Thatcher, jun., and 47 others, 
Simeon S. Gifford and 32 others, Alfred Ivenrick and 45 
others, Benjamin Lancy and 350 others, W. E. Boyden and 
85 others against the same, were severally referred to a Joint 








xxxiv 


HEARING-—JOSEPH M. DAY. 


[May, 


Special Committee of the Legislature, consisting of Messrs. 
Jennings of Bristol, Bruce of Middlesex, and Crowley of Mid¬ 
dlesex, on the part of the Senate, and Messrs. Hill of Haverhill, 
Thayer of Worcester, Jones of Pittsfield, Cook of Bellingham, 
Swift of Boston, Kingsbury of Holliston, Coombs of Newbury- 
port, and Street of South Hadley, on the part of the House. 

PETITION OF LABAN BAKER 2d AND OTHERS. 

To the Honorable Senate and House of Representatives in General Court 
assembled. 

We, the undersigned, citizens of the county of Barnstable, being the lead¬ 
ing petitioners in this behalf, before the Legislature of 1881, earnestly pray 
that both Houses of the Legislature may address the Governor and Council, 
and recommend the removal of Joseph M. Day from the office of judge of 
probate and insolvency for the county of Barnstable. 

REMONSTRANCE AGAINST THE SAME. 

To the Honorable Senate and House of Representatives of the Commonwealth 
of Massachusetts. 

The undersigned, citizens of the county of Barnstable, earnestly remon¬ 
strate against the removal of Hon. Joseph M. Day from the office of judge 
of probate and insolvency of this county. 


CHARGES AND SPECIFICATIONS OF THE PETITIONERS. 

The petitioners for the removal of Judge Day respectfully request that 
the record of the hearing in his case last year on the petition of Joseph P. 
Johnson and others for his removal be considered by this Committee in con¬ 
nection with the charges then presented. 

They will also introduce new evidence in support of the following 
charges: — 

That he was improperly and illegally retained, employed, and paid as 
counsel in other cases: to wit, — 

For Samuel Pitcher, administrator of the estate of Edward J. Carroll in 
1875 or 1876; 

For Ambrose N. Doane, administrator of the estate of Joseph C. Law¬ 
rence in 1877; 

For Isaiah Gifford, guardian or administrator of the estate of Miss Stid; 

For Mary M. Goodspeed, administratrix of the estate of Levi L. Good- 
speed in 1880; 

That he has been privy to the taking of illegal fees by the register of 
his court, and has counselled and advised the same; 

That he has not audited the account of the register of his court, as re¬ 
quired by law; 

That, while acting as judge, he treated Mrs. Nickerson, widow of Henry 


1882.] 


SENATE — No. 150. 


xxxv 


Nickerson, with such harshness and rudeness that she fainted in the court¬ 
room ; 

That he was intoxicated on the cars at Cohasset Narrows, as charged in 
the hearing last year. 

The petitioners also request to be allowed to file further specifications, 
if new facts shall come to their knowledge during this hearing. 

B. WADLEIGH, 

Attorney for the Petitioners. 


ADDITIONAL CHARGES AND SPECIFICATIONS OF THE 

PETITIONERS. 

GROUNDS UPON WHICH JUDGE JOSEPH M. DAY’S REMOVAL IS 

ASKED. 

I. 

That he has been in the practice and habit of improperly and illegally 
acting as counsel for and advising with executors, administrators, and 
guardians, and other parties to proceedings in the probate court for the 
county of Barnstable, and that he was improperly and illegally retained 
and employed as counsel in-the following instances: to wit, — 

1. In 1858, in reference to the will of Daniel Cummings. 

2. In 1867, in the case of Noble P. Swift, a debtor in insolvency. 

3. In 1873, for Eleazer Nickerson, administrator of Seth T. Nickerson. 

4. In 1873, in proceedings for partition in which Reuben Young and Enos 
R. Young were parties. 

5. In 1875 or 1876, in the case of Samuel Pitcher, administrator of the 
estate of Edward J. Carroll. 

6. In 1876, in reference to the will of Jonathan Kelly. 

7. In 1877, in the case of Ambrose N. Doane, administrator of the estate 
of Joseph C. Lawrence. 

8. In 1878, in the case of Samuel Snow, guardian of Ada Stevens, in 
reference to real estate claimed by Morse and Holmes. 

9. In 1880, in the case of Mary M. Goodspeed, administratrix of the 
estate of Levi L. Goodspeed. 

10. In 1881, in the case of Nathan Crocker, administrator of the estate 
of Nathan Crocker, where the town of Barnstable was a party. 

11. In 1868-74, in the case of Bradford L. Crocker, executor of the will 
of Betsey Kelley. 

12. In 1871-77, in the case of Isaiah Gifford, guardian of Mary Stid. 

13. In the case of Varanus B. Nickerson v. Edward E Crowell, et als., in 
the Superior Court for the county of Barnstable during the years 1867, 1868, 
1869, 1870, which suit or matter depended upon and related to certain de¬ 
crees or orders made and passed by him as judge of the Court of Insolvency 
in the case of Varanus B. Nickerson. 

14. In the years 1875, 1879, for Thomas H. Lawrence, administrator of 
the estate of Charles Dimmick. 


xxxvi 


HEARING —JOSEPH M. DAY. 


[May, 


II. 

That he improperly and illegally sat and acted as judge of said court, 
being or having been counsel in the matters above specified, and has been in 
the practice and habit of so sitting and acting. 

III. 

That he has been privy to the taking of illegal fees by the former register 
of said court, and has counselled and advised the same. 

IV. 

That he was privy to and consented to the violation of law by said former 
register of probate in not keeping a cash*docket open at reasonable times 
to the inspection of the public, and in not accounting for and paying over 
the fees received by him quarterly, as required by law, to the treasurer of 
the Commonwealth. 

Y. 

That he did not audit said register’s quarterly accounts, and direct what 
sums he should pay over to the treasurer of the Commonwealth, as the law 
required. 

YI. 

That in 1878, on the cars near Cohasset Narrows; at Middleborough in 
1880; in 1879, at Davis’s Hotel in Falmouth; and about 1873, in the cars 
going from Boston to Barnstable; and at other times and places, — he was 
intoxicated under circumstances calculated to bring his office into contempt. 

YII. 

That in 1871 he treated Mary C. Paddock, at the probate office in Barn¬ 
stable, with discourtesy and rudeness; and in 1879 he treated Clarissa Nick¬ 
erson, executrix of the will of Henry Nickerson, and a suitor in said court, 
with such harshness and rudeness that she fainted. 

VIII. 

That about the year 1874, he wrongfully demanded and received from 
Alice Crowell, now Alice Newcomb, the sum of fifty dollars, she being then 

.administratrix of the estate of Willard A Crowell. 

\ 

IX. 

That in 1861, while judge of probate, said Day was appointed collector 
of customs for the district of Barnstable, with the understanding that he 
would resign the office of judge, but that he did not so resign; that, while 
holding both said offices, he corruptly demanded and received from officers, 
recommended for appointment by him as such collector, sums varying from 
thirty-five dollars to one hundred dollars each, amounting in all to about 
fifteen hundred dollars; that, after holding both said offices for some months, 
he resigned said collectorship for a pecuniary consideration, and with the 
understanding that said officials already then appointed on his recommenda¬ 
tion should not be disturbed during their terms of office. 

B. WADLEIGH, 

Counsel for Petitioners. 


1882.] 


SENATE—No. 150. 


xxxvii 

ANSWER OF THE REMONSTRANTS TO THE CHARGES AND 
SPECIFICATIONS OF PETITIONERS. 

MOTION. 

Commonwealth of Massachusetts. 

In Joint Special Committee of both Houses. 

In the matter of the petition of Laban Baker 2d and others, praying for 
the removal, by address, of Joseph M. Day from the office of judge of pro¬ 
bate and insolvency for the county of Barnstable. 

And now come the remonstrants in the above-entitled matter, and not 
admitting, but expressly denying, the truth of the charges hereafter referred 
to, move the Committee as follows: — 

That charge IX. of the charges and specifications filed before this Com¬ 
mittee, entitled “ Grounds upon which Judge J. M. Day’s removal is asked,” 
relating to alleged misconduct in a federal office in 1861, be stricken from 
said charges and expunged from the record, because said charge IX. is 
irrelevant, impertinent, and scandalous, having no bearing upon the matter 
under consideration. 

By their Attorneys, 

CHARLES P. THOMPSON, 
THOMAS II. TALBOT, 

E. W. BURDETT. 

PRELIMINARY ANSWER OF REMONSTRANTS. 

Commonwealth of Massachusetts. 

In Joint Special Committee of both Houses. 

In the matter of the petition of Laban Baker 2d and others, praying for 
the removal, by address, of Joseph M. Day from the office of judge of pro¬ 
bate and insolvency for the county of Barnstable. 

And now coine the remonstrants in the above-entitled matter, and before 
making general answer to the charges and specifications filed before this 
Committee, entitled “ Grounds upon which Judge J. M. Day’s removal is 
asked,” and say as follows : to wit, — 

I. That neither the remonstrants or respondent ought to be required to 
answer to the charges and specifications entitled as aforesaid, the same being 
presented for the first time to this Committee; that they ought not to be 
required to answer to any charges, except such as have first been submitted 
to the Senate and House of Representatives; and that the filing of charges 
and specifications before a Committee in the first instance is irregular and 
improper, and does not impose upon the Committee any right or duty to 
hear and report upon the same. 

II. That they ought not to be required to answer said charges and speci¬ 
fications, because they are of the same general nature as, and substantial 
repetitions of, the charges and specifications presented to and passed upon 
by the General Court of 1881; and that the subject-matter upon which are 
based such of said charges and specifications as were not contained among 




xxxviii HEARING —JOSEPH M. DAY. [May, 

those presented in 1881 existed at that time, and should then have been 
presented and heard, if relied upon by the petitioners. 

III. T hat they ought not to be required to answer said charges and speci¬ 
fications before this Committee, because the same are charges and specifica¬ 
tions of misconduct and mal-administration in offices, and, if true, render 
the said Joseph M. Day liable to impeachment, and cannot properly be 
inquired of except in a court of impeachment, where such matters are solely 
cognizable. 

By their Attorneys, 

CHARLES P. THOMPSON, 
THOMAS H. TALBOT, 

E. W. BURDETT. 

ANSWER OF REMONSTRANTS. 

Commonwealth of Massachusetts. 

In Joint Special Committee of both Houses. 

In the matter of the petition of Laban Baker 2d and others, praying for 
the removal, by address, of Joseph M. Day from the office of judge of probate 
and insolvency for the county of Barnstable. 

And now come the remonstrants in the above-entitled matter, and affirm¬ 
ing that they ought not to be required to answer the charges and specifica¬ 
tions filed before this Committee for the reasons set forth in a preliminary 
answer heretofore filed by them, but in compliance with the order of said 
Committee, and say as follows: — 

That, upon their information and belief, they deny each and every of said 
charges and specifications, as fully and particularly as if each and every of 
them were herein specifically and separately denied. 

And they further say, upon their information and belief, that the said 
Joseph M. Day is not guilty of any of the violations of law, or of any of the 
other matters and things alleged in said charges and specifications. And, in 
relation to the ninth of said charges, they further say, that the same is, upon 
the face of it, irrelevant, impertinent, and scandalous, and ought to be stricken 
from the record of these proceedings, as an allegation in no way connected 
with or bearing upon the matters now under investigation. 

By their attorneys, 

CHARLES P. THOMPSON, 
THOMAS H. TALBOT, 
EVERETT W. BURDETT 


1882.] 


SENATE —No. 150. 


XX XIX 


ANSWER OF THE RESPONDENT, JOSEPH M. DAY, TO THE 
CHARGES AND SPECIFICATIONS OF THE PETITIONERS. 

Barnstable, Feb. 23, 1882. 

To the Joint Special Committee of both Houses of the Legislature , to which was 
referred the petition of Laban Baker 2d and seven others , praying for my 
removal , by address, from the office of Judge of Probate and Insolvency for the 
County of Barnstable. 

' Gentlemen, — I have received the charges and specifications filed against 
me by the counsel for the petitioners in compliance with the order of your 
Committee, and in response thereto I desire to submit the following : — 
These charges and specifications I find to be substantially the same as 
those which were fully heard before a joint special committee of the Legisla¬ 
ture of 1881. So far as there is apparent substance in any new allegation, 
it is at most merely a new specification under one or another of these old and 
fully disposed-of charges, something then existing, and that must have been 
well known to my accusers. 

The truth of all these allegations I most emphatically deny. The ninth 
charge is without foundation in fact, and bears upon its face conclusive evi¬ 
dence that it ought not to be considered by your Committee. 

With great respect for, and entire confidence in, the tribunal before which 
I am called, permit me to state to you, and through you to the honorable 
body you represent, briefly, my reasons for the course hereinafter indicated. 

First of all, gentlemen, I desire to call your attention to the fact, that every 
charge urged against me last year was of an impeachable offence; and every 
specification under these charges, if proved or alleged in fact and motive, was 
a sufficient foundation for and justification of the charge to which it belonged. 

My claim then was, that, for an impeachable offence, a judicial officer of 
the Commonwealth of Massachusetts had the right to be tried by the only 
constitutional tribunal provided for the consideration of such offences; that 
is, a tribunal before which alone a trial could be had under all the safeguards 
provided by that same Constitution against the destruction of judicial honor, 
and the tenure provided for the judicial servants of the Commonwealth, and 
one that could render a final and conclusive judgment. 

That claim was waived for one reason and one only; viz., the apprehen¬ 
sion that a persistence therein, and action in accordance therewith, might 
possibly be regarded as an excuse for not meeting in a prompt and proper 
manner charges of personal and official misconduct. 

As a consequence, I passed through weeks of exhaustive investigation 
covering the entire period of my official life (more than twenty-three years); 
and I do not need to recall to the attention of some of your body, if of any, 
that the result was the unanimous recommendation of a joint special commit¬ 
tee of the body you now represent, that the petitioners for my removal have 
leave to withdraw. 

Now, gentlemen of the Committee, after all this, I feel that I have the 
right to say that my claim of right is the same this, as it was last, year, and to 
point out to you, that to pursue me with proceedings for removal by address, 
upon charges which, if true, are proper charges upon which to base articles 






xl 


HEARING — JOSEPH M. DAY. [May, ’82. 


of impeachment, is, if not illegal and unconstitutional, most cruel and unjust, 
because, — 

1st, While members of the House and Senate may vote the address ashed 
for, they may do so without regard to the question whether or not a single 
charge against me has been sustained by proof. 

2d, In this event, no reasons for my removal from office appearing of 
record excepting the charges referred to, these charges must and will inevit¬ 
ably be taken by the public to have been proved, while not one of my judges 
will be responsible under oath for the apparent findings against me. 

And I further submit to you, gentlemen, that to permit the re-opening of 
charges against me, disposed of by the Legislature of last year, is to the last 
degree oppressive, because, — 

1st, My presence before the Legislature year after year as a defendant 
against proceedings involving my right to hold my present position, will 
necessarily inspire the suspicion that I am unduly and indelicately anxious 
to retain the same. 

2d, If these charges are not now to be taken to be res ad judicata in my 
favor, there can be no active judgment or finding by this Legislature that 
can make them so; and, in pursuance of a threat against me by a promoter 
of (though not a petitioner for) this year’s proceedings, 1 may be called upon 
to spend my last dollar, and then meet with defeat, for the sole reason that 
my means are exhausted. 

And therefore, Mr. Chairman and gentlemen of the Committee, I most 
respectfully submit whether I ought to appear before you as a party inter¬ 
ested in this investigation until the proper tribunal shall have had presented 
for its consideration questions to determine 

1st, Whether or not a judicial officer of this Commonwealth may be legally 
removed from office by address, upon charges that, if true, would warrant 
his removal by impeachment. 

2d, Whether charges against a judicial officer of this Commonwealth 
upon proceedings for his removal by address, once investigated and passed 
upon by the Legislature, are, or are not, res adjudicata; and, if yea, to what 
extent. 

In order, however, to leave no room for the suggestion that I am not now 
as ready as I was last year, and as I ought to be at all times, to meet my 
accusers face to face, permit me in conclusion to sity that I shall at any time 
welcome the opportunity to meet any and all charges against my personal 
or official record before any tribunal that has the power to say, once and for 
all, “ Not Guilty” as well as “ Guilty.” 

I have the honor to be, Mr. Chairman and gentlemen of the Committee, * 

Very respectfully your obedient servant, 

JOSEPH M. DAY, 

Judge of Probate and Insolvency for the County of Barnstable. 


« 


APPENDIX. 











REPORT OF THE HEARINGS 

Before the Joint Special Committee of the Senate and House , 
upon the Petition of Laban Baker , 2d, and others for , and 
Remonstrance of Nathan Bdson and others against , the 
Removal of Joseph M. Day from the Office of Judge of 
Probate and Insolvency for County of Barnstable. 


Room 14, State House, Boston, 
Feb. 21, 1882. 

The Committee met at 10.50 o’clock a.m., Senator Jennings of 
Bristol, Chairman, presiding. 

The Chairman announced, in regard to the matter of a clerk and a 
stenographer, that he had selected Robert A. Southworth to serve 
as the former, and William B. Wright as the stenographer of the Com¬ 
mittee. 

The Chairman. The matter before the Committee this morning is 

ZD 

the following petition : — 

“ To the Honorable Senate and House of Representatives in General Court 
assembled . 

“We, the undersigned, citizens of the county of Barnstable, being the lead¬ 
ing petitioners in this behalf before the Legislature of 1881, earnestly pray that 
both Houses of the Legislature may address the Governor and Council, and 
recommend the removal of Joseph M. Day from the office of judge of probate 
and insolvency for the county of Barnstable.” 

The Chairman. There have been numerous remonstrances filed, 
signed by many parties, all of which are in substantially the same 
form as the following : — 

“ To the Honorable Senate, and House of Representatives of the Commonwealth 
of Massachusetts. 

“ The undersigned, citizens of the county of Barnstable, earnestly remon¬ 
strate against the removal of Hon. Joseph M. Day from the office of judge of 
probate and insolvency of this county.” 

The Chairman. The Committee are ready to proceed on this peti¬ 
tion and these remonstrances ; and I would ask who, if anybody, 
appears on behalf of the petitioners ? 



4 HEARING —JOSEPH M. DAY. [Feb. 

Mr. Wadleigh. I appear on behalf of the petitioners, Mr. Chair- 
man. 

The Chairman. Who appears on behalf of the remonstrants ? 

Mr. Burdett. Mr. Chairman, Mr. Thomas H. Talbot and myself 
appear this morning in behalf of the remonstrants ; and we expect to 
be joined, at a later stage of the hearing, by Mr. Charles P. Thomp¬ 
son of Gloucester. 

The Chairman. Mr. Talbot’s and Mr. Burdett’s names may be 
entered at present for the remonstrants. Do I understand that you 
do not appear for the respondent, but simply for the remonstrants ? 

Mr. Burdett. Yes, sir. 

The Chairman. Does an3 T bod}~ appear for the respondent? 

Mr. Burdett. As far as we hear, there is no appearance for the 
respondent. Whether there is to be an appearance for him in future, 
is something regarding which the counsel for the remonstrants are 
not at present advised. 

Mr. Wadleigh. I received a notice from the Committee, in which 
I was informed that no witnesses would be heard at this meeting: 
consequently we are not prepared with any testimony this morn¬ 
ing. I suppose that the Committee desire to establish the mode in 
which this investigation and the hearing shall be conducted. I sup¬ 
pose, too, that properly some suggestion should come from the peti¬ 
tioners in the first instance ; and I would propose — and I presume 
that suggestion will meet the sanction of m} T friends, the counsel 
for the remonstrants — that the record of last year go in as a part of 
the case, as a part of the evidence this 3’ear. All that the wit¬ 
nesses, who then appeared and testified before the Committee, testi¬ 
fied to, will go in ; and none of them need be summoned again, unless 
some new matter is introduced. (And I would sa3 T , I am not aware 
that it will be necessaiy, so far as we are concerned, to summon one 
even of the witnesses whose testimon3 T was taken last year.) I sug¬ 
gest that the testimon3 T be considered in connection with the charges 
then made, and that the new testimon3 T be confined to the charges I 
have alread3 T filed with the Committee. I will sa3 r — and I presume 
that will be for the great satisfaction of this Committee — that the 
new testimoi^ will occupy but a short time, in nry judgment. It is 
confined to a few specific facts, and it will not call out an3 T general 
controvers3 r upon matters which are vague in their character. 

I would like to hear from m3 T friends, the counsel for the remon¬ 
strants, whether or not the suggestion which I make meets with their 
approval. 

Mr. Burdett. Mr. Chairman and gentlemen, in behalf of the 
counsel for the remonstrants, I. may say that we are not now, for 
reasons which I will presently give, in an3 r condition to consider an3^ 


1882.] 


SENATE — No. 150. 


5 


of the matters which have been referred to by the counsel for the 
petitioners. There may be some preliminary suggestions to be made 
by counsel on our side, which will be of importance as affecting, per¬ 
haps fundamentally, the whole case. We are not prepared to say an } 7 
thing, or to take any position whatever, as yet, or to take any step, in 
relation to whether the record of 1881 shall be admitted without the 
presence of the witnesses ; and we are not prepared at this time to 
make any suggestions, or to agree to any programme ; and the rea¬ 
son I will state now, and it seems to me that it will be deemed, by 
anybody who pays attention to it, to be a sufficient reason. For one, 
I never enter the trial of an } 7 cause without an opportunity for prepa¬ 
ration ; and that opportunity has not presented itself as yet in relation 
to this matter. I read in the public prints, and was subsequently 
notified by the clerk pro tem. of this Committee, that a hearing would 
be had to-day upon preliminary questions ; and that the remonstrants 
or the respondent would have notice of the specifications, under the 
charges laid against him, three days before the meeting of the Com¬ 
mittee. That was fair and satisfactory to everybody on our side. 
We summoned a meeting, which was held at my office in Boston, with 
a great deal of inconvenience to some of the persons present, on 
Friday. Mr. Thompson of Gloucester was present. Mr. Talbot and 
myself, as well as some of the leading remonstrants and the respond¬ 
ent, were there. We w 7 aited during Friday forenoon without a copy 
of the specifications, in the absence of which we could not go a step, 
of course. That forenoon I called at Mr. Wadleigh’s office, and saw 
a gentleman connected with him in business, and told him w 7 e had 
been waiting for specifications that had not come, and that it would 
be absolutely necessary to have them by two o’clock in order to be 
prepared to appear here, as w r e hoped to be. He told me that the 
specifications would be drawn between one and two o’clock, and that 
we could have them then. In the afternoon I sent a note to him, and 
he said the specifications were in the hands of a copyist, adding that 
we should have them at four o’clock. Mr. Thompson waited in my 
office till then, and later than that; and I waited till the close of busi¬ 
ness hours. When about to go home,—having my overcoat on for 
that purpose, — the specifications arrived. Of course, then it was 
too late to consider them. On Saturday it was impossible to get the 
same gentlemen together for consultation; on Sunday we w r ere 
not required to do so, of course; and on Monday we had no oppor¬ 
tunity to give them the consideration which they deserved. It 
appears, therefore, that three days w’ere not given us for the consid¬ 
eration of these charges, in compliance with the Committee’s order. 
We do not intend to take advantage of this circumstance as a techni- 
cal matter, As soon as we are permitted to prepare ourselves to 


6 


HEARING —JOSEPH M. DAY. 


[Feb. 


appear and go forward with this investigation, w'c shall do so. I do 
not say the delay was through any fault on the part of the gen¬ 
tleman on the other side ; but it was nevertheless to our disadvantage. 
We have not been able to communicate with Mr. Thompson, except 
to send him a cop3 7 of the specifications on Saturday. And for this 
reason I do not want to take a single step forward without having an 
opportunity for conference and consideration, without having the 
ground mapped out beforehand b} r all those who are interested in the 
matter. And I appear here now.in that position, — as one who has had 
no opportunity to consult with the persons who are most interested. 
For this reason, therefore, we very respectfully and very regretfully 
have to make the suggestion and request that the matter be not 
opened for one week. Judge Da} r , by an adjournment of court made 
before this meeting was notified to him, has put himself under obliga¬ 
tions to hold probate court on Thursda}’. Mr. Thompson cannot 
possibly be on hand this week, but tells me that he will so arrange 
his matters, that, if we can bring it about to have the first real meet¬ 
ing a week from to-day, he will be present. The remonstrants regret 
that the facts are as they are ; but the present difficulty 7 seems to have 
been unavoidable under the circumstances. 

The Chairman. Has this proposition of the petitioners, to use 
last year’s report, ever been brought to your attention at all? 

Mr. Burdett. It has, through the specification filed with us late 
Friday afternoon. 

The Chairman. Not before that? 

Mr. Burdett. No, sir, not before that. 

Mr. Wadleigh. Well, gentlemen, I was required to give three 
da3 T s’ notice ; and the three da3’s’ notice I gave, unless Sunday is 
excluded. I do not know whether m3 7 brother intends that that shall 
be or not; nor do I know whether that is within the rules of the Legis¬ 
lature of Massachusetts. I suppose, that, where three days’ notice 
is required, Sunday is not to be excluded, unless by some rule. In 
court there is a rule, but I never have understood that there is such 
a rule in this Legislature. I prepared these specifications so as to 
comply with the order sent me, and intended to furnish them sooner; 
but in the forenoon of that day, and until one o’clock, I was engaged 
before another committee of this Legislature. I made arrangements 
to have the parties meet me between one and two o’clock: but, on 
going to my office, I found that .they had been detained ; and it was 
impossible to get the specification drawn before the3 T came, which w r as 
about four o’clock. 

Now, as to the alleged want of preparation on the other side, I 
confess that I am at a loss to understand what that means. This 
whole matter has been heard fully once. My brothers on the 


1882.] 


SENATE —No. 150. 


7 


other side were both in the hearing, and had charge there; and the 
investigation of this year is so far a part of, and so far connected 
with, the investigation of last year, that I cannot conceive of any¬ 
body who assisted in that investigation — as I did not — claiming 
that there is a want of preparation for commencing this investigation. 
1 do not understand what that means. The Committee will see, on 
looking at the specification which I have filed, that the new matters 
are cognate to those which were to be heard last year; that all, or 
nearly all, of the events occurred within six years; and that, under 
the rule of last year, where the facts occurred within six 3’ears no 
specification of those particular facts was necessai’3 7 at all. They 
stand to-day 7 , so far as this matter is concerned, precisely 7 as the3 7 
stood on an3 7 day during the investigation last y’ear, or on an3 r da3 7 
during that hearing. It seems to me there is nothing in the claim that 
the3 r are not prepared to go along with this hearing. 

The Chairman. Well, I understand Mr. Burdett particularly to 
refer to y’our proposition to introduce the record of last 3 7 ear. 

Mr. Wadleigh. Now, let me say T one word about that. I ask 3 T ou, 
Mr. Chairman, whether he must not have anticipated that? Could 
it be supposed that this Committee would sanction the expense 
of summoning all those witnesses to come up here to testify nega¬ 
tive^ 7 whether the3 T ever saw Judge Da3 T drunk, or whether they ever 
knew Judge Day to be rude, when they were fully examined by the 
counsel of Judge Da3 7 , a party in the case. It could not have been 
supposed that we were to take an3 T course b3 7 which all those witnesses 
were to come up here again, their testimony being all printed, and 
just as capable of being used as though it had been in depositions 
taken in a former hearing of this cause. 

I am desirous, Mr. Chairman and gentlemen, of putting the State 
to an expense as slight as possible, with as little dela3 T as possible, 
and of disposing of this matter at the earliest day. My own engage¬ 
ments next week before the Committee on Street Railways are likely 
to interfere with my attending here ; for it is quite probable, from 
present appearances, that the matter of the Charles River Railway 
will occup3 7 the Committee on Street Railway’s the whole of the week. 
And it seems to me, that, inasmuch as the evidence of these matters 
named in our specification could have been introduced on any day dur¬ 
ing the former hearing, we ought not to be met with the allegation 
that they are not prepared to meet the evidence wjiich we present. 

The Chairman. Were y’ou furnished with a cop3 r of this, Mr. Bur¬ 
dett? We have here the following, which I will read: — 

* “ The petitioners for the removal of Judge Day respectfully request that the 
record of the hearing in his case last year on the petition of Joseph P. Johnson 
and others for his removal be considered by this Committee in connection with 
the charges then presented. 


8 HEARING —JOSEPH M. DAY. [Feb. 

“ They will also introduce new evidence in support of the following 
charges: — 

“That he was improperly and illegally retained, employed, and paid as 
counsel in other cases: to wit, — 

“ For Samuel Pitcher, administrator of the estate of Edward J. Carroll in 
1875 or 1876; 

“For Ambrose N. Doane, administrator of the estate of Joseph C. Lawrence 
in 1877; 

“For Isaiah Gifford, guardian or administrator of the estate of Miss Sted; 

“ For Mary M. Goodspeed, administratrix of the estate of Levi L. Gooclspeed 
in 1880; 

“ That he has been privy to the taking of illegal fees by the register of his 
court, and has counselled and advised the same; 

“ That he has not audited the account of the register of his court, as required 
by law; 

“That, while acting as judge, he treated Mrs. Nickerson, widow of Henry 
Nickerson, with such harshness and rudeness that she fainted in the court¬ 
room ; 

“ That he was intoxicated on the cars at Cohasset Narrows, as charged in the 
hearing last year. 

“The petitioners also request to be allowed to file further specifications, if 
new facts shall come to their knowledge during this hearing. 

B. WADLEIGH, 
Attorney for the Petitioners 

The Chairman. Now, Mr. Burdett, have } t ou received a copy of 
that? 

Mr. Burdett. Yes, sir. 

The Chairman. When? 

Mr. Burdett. At the time I have already stated, — at the close 
of business hours on last Friday. 

Mr. Wadleigii. You sent your boy to my office — 

Mr. Burdett. Yes, sir, with a note, having previous!}’ been there 
m3 T self. 

Mr. Wadleigii. I sent it by the boy. 

Mr. Burdett. Pardon me, sir: you are mistaken. Mr. Wellman 
brought it to us. 

Mr. Wadleigh. Then I am mistaken. I know nothing about it, 
except froib hearsay. 

The Chairman (to Mr. Burdett). You had knowledge, then, on 
Friday night, that they proposed to request the Committee to use the 
record of the hearing of the case last year ? 

Mr. Burdett. Yes, sir. 

The Chairman. Why couldn’t you be prepared to discuss that 
part of it at any rate, at the present time? 

Mr. Burdett. Now, Mr. Chairman, I am glad you ask that ques¬ 
tion. I think you will appreciate the embarrassment of my position, 
and Mr. Talbot s. That is one of the things which we were to con¬ 
sider on Friday. That is one of the things for which Mr. Thompson 


1882.] 


SENATE —No. 150. 


9 


came from Gloucester to Boston, and waited all day. It is one of 
the things for which Judge Day came from Barnstable. 

The Chairman. Why didn’t you consider it? 

Mr. Burdett. We had nothing to consider at that time. There 
had been some talk in the public prints about introducing the record 
of 1881 , but we were not prepared to suppose that it would be done. 
We came together to consider what action we should take in case we 
found that it was proposed to introduce the old record. Of course, 
w r e cannot say we had no conception of such a thing ; but we could not 
make up our minds what to do about it, until it actually presented 
itself. Now, if I understand rightly, there is something to be said 
by Mr. Thompson on that very subject, — the presentation of the 
record of 1881 . Mr. Wadleigh asks if it was to be supposed that 
this Committee would sanction the recalling of all the witnesses of 
last year. We not only did not suppose that the Committee would 
sanction such a proceeding, but we had very grave doubts whether 
they would permit the introduction of the subject-matter of the pro¬ 
ceedings of 1881 in any form, printed or oral. We met at my office, 
in the neighborhood of nine o’clock. I think almost all the parties 
were present at that time, and waited in readiness all day Frida} 7 , 
substantially, in the expectation that something would be presented 
to them that they might consider. Nothing was presented, and we 
separated without an understanding of what was to be done; and 
since that time I have not seen Mr. Thompson, or communicated with 
him, except to send him a copy of the specifications, which I had had 
made : and the matter was left simply there. We were all at sea. I 
can say candidly that it is not for the purpose of delay that we are 
asking this postponement, because, for one, I am better prepared, as 
far as my engagements this week are concerned, than I should be at 
any other time ; but I cannot consent to go forward with a matter 
about which we have had no opportunity of consultation. And, Mr. 
Chairman, as a lawyer, you will not say that a person who is about 
to be indicted is bound to shape his defence before he sees the indict¬ 
ment. A man may have a general notion that he is to be indicted 
for something which he has once answered, and which should not be 
opened anew ; or that something is to be interjected into the pro¬ 
ceeding about to be had against him, for which he has once been put 
in peril: but he is not bound to presume such a tiling, and he is not 
called upon to consider his defence till the charges against him have 
actually been made. 

We met on Friday, expecting to have these charges before us. I 
went to Mr. Wadleigh’s office for them myself, but did not get them, 
being promised them at two o’clock. We kept together until four 
o’clock, and then parted. An hour or two later, when every one else 


10 


HEARING — JOSEPH M. DAY. 


[Feb. 


liad gone home, and I was preparing to leave, the specifications were 
Drought in by Mr. Wadlcigh’s junior partner. Of course it was then 
impossible for them to receive any consideration. On Saturday I 
was detained in m3' office until 6.30 f.m. about other matters, and 
could not consider these charges. On that day the parties were all 
scattered, and could not be gathered again ; and on Sunday we were 
not called upon to attend to it. Monday we did not have time for 
the sufficient consideration of the charges. 

The Chairman. The point is not of }'our consideration of charges 
before the}' are made ; but the question is upon your passing on the 
course of procedure here, which you say your parties came together 
particularly to determine. 

Mr. Burdftt. After we knew what the charges were. 

The Chairman. I don’t see that it would require }'ou to know 
what the charges were, in order to determine whether you would 
allow the record of last }'car to be introduced. It is not necessary 
for a person to know what he is sued for in order to determine 
whether he is going to plead minority, provided the suit is not for 
necessaries. That is the wa}* the question presents itself to my mind, 
— whether or not having met, as you say you did, to consider the 
question of allowing this record to go in, and being all present there, 

■—of course I do not know whether you discussed it or not; but }*ou 
w T ere there to discuss it. It seems to me it is wasting the time of the 
Committee, then, to come here and show an unwillingness to proceed 
on that exception. 

Mr. Burdett. If you will allow one moment — 

Mr. Wadleigii. Of course the Committee will understand that I 
am not posted in the practice of this body, — I mean the Legislature 
of Massachusetts; but the order which I received was to give three 
days’ notice. 

Mr. Swift. ■ Is there a cop}' of that order here, sir? 

Mr. Wadleigii. I have it here. There [producing letter] is the 
letter I received from the clerk. 

The Chairman. I cannot see what the rules of the Committee can 
establish. 

Mr. Wadleigii. I cannot find any thing to justify the supposition 
that Sunday was excluded. 

The Chairman. The fair inference would be, Mr. Wadleigii, to 
think that it was. 

Mr. Wadleigh. Still — 

» 

The Chairman. If you or I received such an order from the court, 
we would ordinarily understand that to mean three days, aside from 
Sunday; and an order of three days’ notice by the Committee, I 
should suppose, would mean what is usually meant by an order of the 
court. 


1882.] 


SENATE —No. 150. 


11 


Mr. Wadletgh. Still, the order of the court applies onl}’ to 
matters in the court; but, if the Legislature should pass a bill requir¬ 
ing three daj's’ or twenty days’ notice, unless Sundays were excluded 
expressly, the} 7 would not be so considered. Here the notice to be 
given would not exclude Sunda}*s, unless there is a general law to 
that effect; and I am not aware that there is any. I supposed the 
order of the Committee would be construed the same as though a bill 
had been passed by the Legislature requiring three or ten days’ 
notice. In that case there can be no doubt that, unless Sundays were 
expressly excepted, they would be excluded. I am confirmed in that 
belief by the opinion of veteran legislators. It never occurred to 
me that giving notice on Friday was not compliance with this 
order. 

Mr. Thayer. I should like to ask the counsel for the remonstrants, 
whether lie understands from the specification that the charges of last 
year are renewed in detail, or whether the hearing is referred to as 
opening the charges afterwards? Were the charges to be renewed in 
detail, or does he understand that the record of the hearing was to 
be accepted as bearing on the new specification herein made? 

Mr. Burdett. I can answer that, Mr. Chairman, simply in 
this way: that that question has not been considered. That would 
have been one question which we would have considered, if the 
charge had reached us in season. Now, I am not going to discuss the 
question of notice: we were acting, at an}* rate, on the understand¬ 
ing that Sunday was to be excluded, and made great efforts to meet 
the Committee and counsel on the other side half way. 

Mr. Wadleigii. Let me ask 3*011 whether, if the Legislature had 
passed a bill requiring three days’, five days’, or twenty days’, or any 
number of da}*s’, notice, Sunday would have been excluded? 

Mr. Burdett. I have no difficulty in answering that question. 
That is not this case. We have come up here to a hearing more in 
the nature of a judicial hearing than any thing else. 

Mr. Wadleigh. Whether or not 3*011 claim that a letter of this 
Committee is to have more force or a different interpretation than a 
bill passed b} 7 the Legislature? 

Mr. Burdett. There is no connection or similarit} 7 between the 
two things. But, as lawyers, we understand that the letter means 
three workinsr-davs. Just one word in answer to the Chairman, as 
to why we did not consider this question, if we had an idea that it 
might come up. I do not think that the members of the present 
Committee — none of whom were members of the body they now repre¬ 
sent in 1881 —appreciate the importance of that preliminary question 
in the view that the respondent and remonstrants may take in this 
case. If we had opened that matter for discussion, very likely it 



12 


HEARING —JOSEPH M. DAY. 


[Feb. 


might have taken all day. We didn’t see fit to waste our powder, 
and it was not wise that we should fire at something that might or 
might not be there. We did not suppose that the Committee in any 
form would resume the hearing of last year, or consider the charges 
of last year in any aspect; and we were not prepared to consider 
that question until it had become settled beyond all doubt. All I 
can say is, we have acted in good faith; and we now find ourselves 
in a position where it is impossible for us to go on with this hearing 
intelligently at this time, although I regret it as much as any member 
of the Committee. 

Mr. Talbot. I rise for the purpose of making our proposition 
clearer, and also to endeavor to make a suggestion which will meet 
the views of the Committee. I simply say, that at this stage we ask 
what the Committee of last 3'ear freely and voluntarily granted. We 
raised preliminary questions last year before the Committee. It is 
our privilege, as I understand, to raise those preliminary questions 
before you, Mr. Chairman and gentlemen ; and we simply ask you to 
treat us in that respect as they treated us last year. The} T gave us 
the liberty to argue those preliminary questions at the beginning; 
and when, in view of the false position in which it might put the 
respondent, as endeavoring to exclude the investigation of the facts, 
we waived that privilege, and claimed it at the end of the hearing, 
the Committee intimated to us with apparent surprise that they 
thought we were a little in fault in waiving that privilege. Let me 
corroborate this. Let me make it distinct. On p. 406 of the printed 
report the Chairman says, “We expected to hear argument in that 
form,” —that is, the preliminary matter at the beginning of the hear¬ 
ing. “We expected to hear argument in that form,” not a particle 
of information that the Committee would exclude us in that form, not 
a word. “And we were surprised . . . by your taking the other 
course.” The old Committee not only allowed us to argue at the 
beginning; but, when we did not argue at the beginning, the} r inti¬ 
mated that we were in fault. 

And, Mr. Chairman, there is another point that I present to you. 
I appreciate that neither you nor any of the members of this Com¬ 
mittee wish us to present any part of our case piecemeal. If we have 
a case worth} 7 of presentation, you will allow us to present it as a 
whole, and will not select an} 7 part and insist upon our arguing that, 
and then go on and have us present the other at another time. I 
think we should have the same consideration we had before. We 
have not determined exactly what our course shall be, only that we 
shall have some considerations worthy of presentation to you, as the 
Committee pursued last year — 

The Chairman. That is one reason why we gave this day to you, 


1882.] 


SENATE —No. 150. 


18 


and provided expressly in the notice that there would be no witnesses 
heard. That is the object of this meeting. 

Mr. Talbot. And my associate has explained to you how that 
object has been defeated. We make no charge of fault on the part 
of counsel on the other side: we say, in fact, it has been defeated. 
Now that I am discussing that matter, I propose a method of treating 
this case. We have not filed an } 7 answer to those specifications, for 
the simple reason, that, since those specifications came in, it has been 
impossible for us to get together. That is all we say. I propose, 
then, that this Committee adjourn until Tuesday next, when Mr. 
Thompson will be at liberty for the first time. On Saturday morning, 
or Friday, we will file our answer; we will furnish counsel on the 
other side with our answer to the specifiations; and on Tuesday, if 
the Committee shall see fit to hear us, we shall be ready to answer 
and submit any preliminary objections we have to make ; and we have 
matters beside those which have been suggested by the Chair. 

Mr. Wadleigh. I do not know as I can add any thing to what I 
have said. It seems to me that two counsel of such ability as those 
on the other side, who were present during the investigation of last 
year, must be competent without the aid of brother Thompson, who 
was not here at all, to argue this preliminary question. I suggest to 
the gentlemen of the Committee that the gentleman at the other end 
of the table (Mr. Thayer) made an inquiry of brother Burdett which 
was not answered. 

Mr. Talbot. I never thought of that question until the gentleman 
at the head of the board suggested it. 

Mr. Chairman. It seems to me that it is quite an important 
one. 

Mr. Wadleigh. Would the Committee like to have me explain? 

The Chairman. I would like to call your attention to the fact, that, 
as I understand your motion here, you simply request that the record 
of the hearing in his case last year be considered by the Committee 
in connection with the charges then presented. Now, Mr. Thayer’s 
difficulty — and we think it is a proper and important question for the 
Committee and for you to consider—is, whether that is presenting here 
in a sufficiently formal way the allegations that you propose to rely 
upon. You surely would not present them so in court, either in a 
civil or a criminal action ; and whether it is not better, even if you 
do use the record, — this is what I suppose Mr. Thayer had in 
mind, — whether it is not better, as a whole, for you to set out your 
specifications from the beginning to the end. If you want to use 
those, set them out so that we may have a distinct bill of specifica¬ 
tions before this Committee, properly numbered, that we are to con¬ 
sider and act upon. 


14 


HEARING — JOSEPH M. DAY. 


[Feb. 


Mr. Wadleigh. Let me suggest that what I meant by that was, 
to take the charges of last year in connection with the record, and in 
no other manner; that, to sustain those charges, no new evidence 
should be presented ; and, if any of those charges are not re-affirmed 
in this specification, that no other evidence should be introduced in 
regard to them on either side. 

The Chairman. It seems to me that } 7 ou can reach that just as 
well if you set out these specifications in order, and then move the 
Committee that the evidence taken in regard to these charges last 
year shall be applied to certain specifications, and no other. 

Mr. Wadleigh. Of course I am perfectly willing to meet the 
wishes of the Committee in that respect; but certainly, Mr. Chairman, 
that cannot be made a ground of delay by counsel, who consid¬ 
ered those charges last year, and who conducted this investigation at 
great length then. The legal maxim is, 44 That is certain which can 
be rendered certain ; ” and those gentlemen who were here last year 
cannot claim that this specification is to them uncertain. 

The Chairman. That suggestion only comes from the Committee 
for their own convenience. 

Mr. Wadleigh. The Committee understand that we, with a view 
to shorten the investigation, intend to introduce new evidence only on 
the charges that we ma } 7 specify this year, but that all the evidence 
of last year should be considered in connection with the charges then 
made ; and the } 7 are now re-affirmed for that purpose only. Our idea 
is, that we can thus shorten this proceeding very much. The peti¬ 
tioners are willing to stand on the specific matters which they now 
allege, the record of last year going in as a whole, charges, evidence, 
etc. 

Mr. Swift. I should like to ask the gentleman, through the Chair¬ 
man, what he asks in relation to the charge of last year, which is 
reiterated in the charges of this year ? I think, at least, one of those 
charges is contained in the charges of last year. How would you do 
in that case ? 

Mr. Wadleigh. In that case, we introduce new evidence on that 
point. 

Mr. Swift. How about the old evidence? 

Mr. Wadleigh. That is to be considered. 

Mr. Swift. That would be competent on that charge. 

Mr. Wadleigh. Of course ; but the charge is reiterated to notify 
them that we introduce new evidence upon it. 

Mr. Rruce. Suppose that the Committee should vote not to re¬ 
introduce last 3'ear’s charges, then you have simply those charges 
here to rest upon ? 

Mr. Wadleigh. Then we should have to summon all the witnesses 
who were here last year. 


1882.] 


SENATE —No. 150. 


15 


Mr. Bruce. Not on that question — in case the Committee voted 
they would not receive the record of last year? 

Mr. A\ adleigh. Then I should have to make some new ones. 

Mr. Bruce. Then why not have them, all that we care to rely on? 

The Chairman. The object of the senator, as I understand it, is, 
that if you wish to make a motion as to certain of these specifications 
you detail, and propose to introduce only the evidence of that prior 
record, you can put that in the form of a motion, and let it stand 
there. You can accomplish your object just as well by moving that 
the record of last year be taken in connection with certain of these 
charges that 3 011 make, and no new evidence be introduced, and then 
go on and introduce the evidence of the specific charges; and then, if 
we vote not to take the record, we go into each charge on its merits. 

Mr. AVadleigh. That would be more agreeable to the petitioners 
than the course which I suggested. I suggested the course I did 
because I supposed my brother Burdett would complain that the 
whole record ought to go before the Committee. I am perfectly 
willing to take the course which the Chairman of the Committee 
suggests. 

Mr. Thayer. I should like to ask the counsel for the petitioners, 
whether it is not an anomaly to file his declaration, or his bill of in¬ 
dictment, in such a way? — that is, he draws his declaration or indict¬ 
ment in one form, relying on the ruling of the court affirmative!}' in 
his favor. Would it not be better to file his specification as in a 
criminal or civil action, taking all the chances of being ruled against 
himself? 

Mr. Wadleigh. My brother is correct so far as legal analog}' is 
concerned ; but I venture to say that no legislatures nor legislative 
committees are governed by the rules of the common law as to plead¬ 
ing. Those rules arc sometimes very burdensome and annoying in 
courts ; and no legislative body, nor committee that I have ever 
known, was willing to be bound by them. But, if this Committee 
desires to be bound by those rules, I have no reason to complain. 
I would suggest, that, if those rules are strictly held to, it will cause 
a great deal of unnecessary controversy, and be likely to lengthen 
the hearing. 

Mr. Swift. So far as the rules of law tend to produce distinct 
issues, I should think they might help to clear up matters for 11s. 

Mr. Burdett. If this record of 1881 is ever going to receive com¬ 
mendation in the future, it will be from the fact that the hearing 
approached nearer to a proceeding in a court of justice than any 
investigation of which I have any knowledge. That is the merit of 
it; and the ground on which it received great credit throughout the 
Commonwealth was, that we were bound by the same rules, and that 


t 


/ 


16 


HEARING — JOSEPH M. DAY. 


[Feb. 


we proceeded with the same order, as in a court of justice ; and the 
chairman of that Committee, who now adorns the bench of this Com¬ 
monwealth, brought to himself more credit than in any other way by 
this mode of procedure. It was because we went forward in an 
orderly, legal, decent way, that we accomplished the work as it was 
done ; and I have heard of no other course of action for this }’ear. 

Mr. Wadleigh. Does my brother Burdett claim that evidence was 
not admitted, which, under the rules of law, would have been in¬ 
admissible? — because, if he does, I think one can open the book at 
random, and refute him. 

Mr. Burdett. So far as my recollection goes, in that report there 
is but one or two pieces of evidence admitted that were presumed to 
be inadmissible according to the rules of evidence. The Chairman 
atone time said, “I think we ought to hear the evidence.” Only 
once : there was no other exception to the rule, which I now recall. 

Mr. Hill. It seems to me that this question of the admissibility of 
the record of last year ought to be determined earty in the case. If 
we progress, we will find it a stumbling-block throughout the investi¬ 
gation ; and it seems to me that the counsel ought to present their 
views on that part of the case at an early daj^. 

Mr. Burdett. We shall be prepared to present our views, pro¬ 
vided the hearing is set far enough off to enable us to hold a confer¬ 
ence. We need the assistance of a gentleman who is to take charge 
of that portion of the argument. 

Mr. Wadleigh. The allegations which the gentlemen make about 
their want of preparation in this case fill me with dismay. Since I 
was retained in this case I have had very little time to attend to it. 
Before I was retained I knew nothing about it whatever. I have 
only been able to read this record of last year’s hearing through once, 
and that hastilj’. Now, if they on the other side are not prepared, 
having two counsel, who went through the whole matter last 3’ear, it 
occurs to me that this case is of such a peculiar nature, that I am not 
prepared to go on with it. It seems to me, Mr. Chairman, that this 
only means delay. 

The Chairman. Would you care to state, Mr. Burdett, what pre¬ 
liminary questions you expect to argue, aside from the question of 
the use of this record of last year? 

Mr. Burdett. I can answer that onty in the same way I have 
answered a similar inquiry before: that what we shall say in that 
regard has not been discussed at all. Last year we discussed at 
some length, toward the end of the hearing (having filed our plea at 
the beginning), whether the Legislature had authority to go forward 
in the investigation of a judge on charges which were in their nature 
impeachable. The counsel for the remonstrants in this case have not 


1882.] 


SENATE —No. 150. 


IT 


changed their minds one particle on that subject, that this Committee 
ought not to go forward in the investigation of impeachable offences ; 
but whether, having gone over that last 3 T ear, the3 T should deem it wise 
to set it up again, I cannot sa3*. I have not had an opportunity to 
discuss that with my associates. Another question may be, whether 
the matters passed upon last 3’ear have not been settled. And an¬ 
other question is, whether, if we re-open the subjects of last 3 T ear, we 
had better have the record or the witnesses. I have named three. 
Whether the specifications as the3 7 stand now are properly made, may 
be a fourth. I have read them over, but have not had a word with 
Judge Da3 T in relation to them ; and he is the only man who has any 
knowledge of their truth or falsit3*. Although I have not examined 
them carefulty for that purpose, it may be that they are not stated so 
as to give us proper notice of what is charged. I don’t know but 
that may be one of the questions to be discussed. There ma3 r be 
others ; but, as junior counsel in this case, I cannot say what course 
nay seniors ma3 7 decide upon. I have had no conference with them 
on these later developments, and have no basis to stand on. I can¬ 
not get up and answer at random questions as to what preliminary 
matter is going to be raised. 

The Chairman. The trouble is, 3'ou don’t seem to have considered 
any thing, or made an3* effort to consider an3 7 thing. That is the 
fault the Committee find. You had this specification furnished 3*011 
on Friday night, and you had Saturda3 T and Monday to consider it 
and form some plan ; but nothing was done. Now, the Committee 
feel as if their time was somewhat precious in this matter. Two ses¬ 
sions of the Legislature will be begun soon each da3 7 : and the trouble 
seems to be, in my mind at least, that you appear to have made no 
xieadwa3 T during Saturday or Monda3 T to have considered an3 T of these 
matters ; so that you cannot give us an3 r information as to what your 
method of procedure will be, what matters 3*011 want to raise or care 
to discuss. This is the difficulty in the case with the Committee, 
and where, it seems to me, you had hardly fulfilled your duty in the 
matter. 

Mr. Burdett. I appreciate your objection, and, without knowing 
the peculiar difficulties with which we are surrounded, I might be 
willing to concede its justice ; but of course you realize that profes¬ 
sional gentlemen have other things to attend to beside investigations 
before legislative committees, and that Judge Day resides at a long 
distance from Boston. Mr. Thompson resides in Gloucester, doing 
business in Salem ; and it is difficult to get those people together. 

1 

Now, all the gentlemen concerned in this consultation so arranged 
their business that they could devote Friday to it; but of course our 
conference was defeated on Friday by not receiving the specifications : 


18 


HEARING —JOSEPH M. DAY. 


[Feb. 


and on Saturday I personally had a matter before a Master, which 
had been set down long in advance of the receipt of the notice of this 
Committee. On Monday, Mr. Thompson was engaged in court, and 
Mr. Talbot and I were busy about other matters which we could not 
possibty neglect. It seems to me, that having spent one whole day 
waiting for the specifications in good faith, which we did not receive, 
we ought to be given the benefit of the supposition that we have 
honestly endeavored to prepare ourselves for this hearing. And 
attempting to decide on a course of action, in advance of knowing 
what the specifications and charges were to be, would be nonsense. 
If we were prepared, there is no day in which I should be so glad to 
go forward as now. 

The Chairman. We think there is considerable force, Mr. Bur- 
dett, in what Mr. Wadleigh says about the fact that the remonstrants 
are represented here at least by two gentlemen who largety conducted 
the case last 3’ear. Of course we understand that junior counsel al¬ 
ways yield to the wishes and opinions of their seniors ; but it is also 
just as true that senior counsel derive their information largely, and 
even have their course mapped out for them, b} T the juniors; and I 
have no doubt but what, if Mr. Thompson were here, he would sim¬ 
ply present, perhaps in his own wa} r , but present the law largely, if 
not wholly, as presented to him by his juniors, and as furnished to 
him by them. 

Mr. Burdett. That is a ver} r fair suggestion ; but, if 3*ou’ll allow 
me one word, this matter was of so great length, involving the testi¬ 
mony of so many witnesses, that last year the work was pretty 
equally divided. My province was not the consideration of these 
points that we are now discussing; neither was that the province of 
Mr. Talbot. Mr. Gooch, who was then associated with us, and had 
charge of that portion of the case, — Mr. Gooch, by reason of the 
pressure of official duties in another direction, goes out of the case; 
and Mr. Thompson takes his place, and deals with these questions. 
If m} T part of this present investigation is to be the looking after the 
testimony, I cannot agree to hold n^'self responsible, or make a^^ 
effort in the direction of the consideration of questions involving 
these matters of procedure. That is the answer, Mr. Chairman, — 
that the present counsel, although they did in fact represent the re¬ 
spondent last year, did not deal — so far as I am concerned I can sa3 T 
so with certainty, although Mr. Talbot did, I believe, to some extent, 
but not mainty— with these questions which are now raised. 

The Chairman. Pardon me one moment: as I understand, yon 
decline to discuss this matter of the use of the record at all to-day, 
Mr. Burdett? 

Mr. Burdett. I don’t want to go so far as to say I decline, 


1882.] 


SENATE —No. 150. 


19 


because that might be disrespectful to the Committee ; but I can 
simply go so far as to sa}’ that I am unable to. I cannot row a boat 
when I have no oars. That is my position. I came up here suppos¬ 
ing our explanation would be ample, and that the gentleman who did 
have charge of that part of the case, having met us, and having made 
an effort to be ready to-day, and having failed, for the reason I have 
given, would be given an opportunity to come here for that purpose ; 
and, so far as I am concerned, it amounts substantial^ to what you 
have suggested, — I must decline personally to take any responsi¬ 
bility or to utter a word in regard to these questions, which are of 
great importance, and which have been left to another person to 
present in his own wa}’, and according to his own best judgment. 

The Chairman. Your excuse would be stronger but for the 
anouncement made b}’ yourself, that your parties met, for one thing, 
to consider this veiy question of the introduction of the record. 

Mr. Burdett. If that question had arisen. We didn’t know that 
question was to arise, nor in what shape it was to come. We could 
not get together and discuss in advance something which might come 
up or which might not come up. That is not m} T way of doing busi¬ 
ness, although some people conduct their business on that plan. 

Mr. Wadleigh. That is the way counsel usually try their cases : 
the} T do not wait till the}’ see what the other side will produce. 

Mr. Burdett. I wait till I see whether I have a target to shoot 
at every time, and do not waste my powder shooting into the dark. 

Mr. Wadleigh. I venture to say that if my brother Burdett never 
undertakes to meet what evidence his adversaries may produce, he will 
not have that success in the future which he has had in the past. 

The Chairman. You see, gentlemen, all of you, the position 
you have put the Committee in by your numerous engagements. It 
is the misfortune, if I might call it so, of the parties here to have 
counsel here who have so many engagements elsewhere. But it 
seems to me }’ou can hardly expect the Committee, while they are 
willing to show all reasonable courtesy to the parties here, and to 
take into consideration their other engagements, — nor is it hardly 
rio-ht to ask this Committee, consisting of eleven members from both 
houses, — to give up their other engagements on other committees, and 
make their plans to come here and sit, and then not find the parties 
ready, —especially in view of the fact that we shall soon be so busy 
in the Legislature, with two sessions each day, that it will be almost 
impossible for us to hold our hearings without interfering with the 
regular sessions of the Legislature. I think the desire, of the whole 
Committee is to have this matter disposed of as rapidly as possible, 
and in that respect I agree very fully with the counsel for the peti¬ 
tioners in attempting to press it forward with all speed. 


20 HEARING — JOSEPH M. DAY. [Feb. 

Mr. Burdett. The counsel for the remonstrants are equally anx¬ 
ious to go forward. 

Mr. Bruce offered the following motion: — 

“That the petitioners be directed to file with the Committee on Wednesday 
of this week all specifications of charges for the removal of Judge Day on 
which they intend to rely; that a copy of said specifications be furnished on 
the same day to the counsel for the remonstrants and also to Judge Day; that 
the answer to said specifications be filed with the Committee on Friday morning 
of this week, at which last-named day the Committee will expect the peti¬ 
tioners and remonstrants to be ready to present any and all preliminary ques¬ 
tions, and their arguments thereon; and that the remonstrants give notice to 
the petitioners on Thursday of this week of all preliminary questions which 
they intend to raise.” 

The Chairman. I would suggest to the counsel for the petitioners, 
that, if there is an}^ preliminary motion they expect to raise, — as, 
for instance, this question of receiving the record, — he should also 
give notice. 

Mr. Wadleigh. Since the Chairman suggests that I should file 
new specifications, I am willing to do that. 

The Chairman. And, if 3’ou have any motion to make in regard 
to the use of evidence previously taken as applicable to an}- of these 
charges, I wish you would put that motion in writing, and hand it to 
the remonstrants. 

Mr. Wadleigh. The motion will be (and I notifj r my brethren 
on the other side), that the evidence taken last year, applicable to the 
charges made this, be all received. 

The Chairman. If you have no objection, the Committee accept 
that as sufficient notice to the parties of that motion to be made and 
argued on Friday next. 

Mr. Bruce’s motion, given above, was then adopted by the Com¬ 
mittee. 

Mr. Wadleigh. Now, Mr. Chairman, I should like to make 
another motion ; and that is, that these petitioners have leave to 
take the deposition of David Bursley. lie is an elderly gentleman, 
whose health will not permit his coming here. I wish to give my 
brothers on the other side all the notice that is possible, and I now 
notify them that we desire to take his deposition prior to the first 
meeting of the Committee at which evidence will be heard. 

Mr. Hill (of the Committee). In the ordinary way, Mr. Wad¬ 
leigh? 

Mr. Wadleigh. Yes, sir. 

Mr. Burdett. Whether we will agree to the admission of his 
deposition, we do not say. That question about depositions was 
raised, I believe, in the early part of the last investigation ; and it 
was decided that depositions were not the things upon which to try 


1882.] 


SENATE —No. 150. 


21 


a man upon charges like those presented here. It certainly would 
not be admissible in a criminal proceeding; and this is as nearly a 
criminal proceeding as any can be, it seems to me ; and, whether it 
be or not, a deposition is not the proper way in w r hich to present evi¬ 
dence here. Whether ive shall agree to admit it or not, I do not 
say; but, of course, we accept the notice. 

The Chairman. Are you prepared to argue that question now as 
to the admission of any depositions? We should like to go ahead 
on something this morning. 

Mr. Wadleigh. I am. In regard to the suggestion made by my 
brother Burdett, that, on account of the similarity of this proceeding 
to a prosecution for a crime, no depositions can be admitted, I take 
issue with him upon that similarity. This is simply a question ad¬ 
dressed to the discretion of the Legislature, whether or not, under all 
the circumstances, it is for the public good that Judge Day should be 
removed? They may proceed without any notice, if they choose; 
they may proceed without any testimony, if they choose ; they may 
proceed upon any ground whatever which, in their judgment, makes 
it for the public good that he be removed. Whatever offences he 
may have been guilty of, that, in the judgment of the Legislature, 
call for his removal, there is no punishment and no penalty attached 
to this proceeding, — the removal from office is neither a punishment 
nor a penalt} T , — and I think the Legislature or the Committee may 
receive any evidence whatever that they shall see fit. Now, the only 
question is, wdiether or not, under all the circumstances, it is reason¬ 
able that they should allow this deposition to be taken ? Mr. Bursley, 
as I am informed, is seventy-eight } T ears old, in feeble health, and 
cannot come here without great inconvenience and danger. He 
knows facts that are material in this case, and I am at a loss to 
conjecture any ground on which it can be contended that his depo¬ 
sition should not be taken in the ordinary way. If there are such 
reasons, none occur to me ; and, as none occur to me, it is impossible 
for me to argue them. I should like to hear from my brother what 
possible reason there can be for refusing to allow us to take the 
deposition under these circumstances? 

Mr. Burdett. Mr. Chairman and gentlemen, we have not, as yet, 
refused : w r e say we are not prepared to sa} T whether we will object or 
not to the admission of the deposition in this proceeding. We 
w r ould, perhaps, know better what to do and what to say, if we were 
given some reasonable notice of the subject-matter touching which 
the deposition is desired to be taken. 

The Chairman. Take the general question of any deposition 
being taken, — what do you say to that, granting that they show 
cause? 


99 


HEARING —JOSEPH M. DAY. 


[Feb. 


Mr. Burdett. Now, Mr. Chairman, I speak on my own responsi¬ 
bility, without ai^ conference with anybody ; and I should not want 
to take a very decided stand one way or the other, because that 
seems to me to be a question needing some consideration, and to be, 
perhaps, a close one. We think it is certainly true, that, in an inves¬ 
tigation of this kind, it would be extremely dangerous, and against 
good policy, to sa}r the least, to conduct it upon the foundation of 
depositions. Whether there may not be one or two instances in 
which it would be wise to depart from the general rule, we do not 
now say; but we do say that it is extremely doubtful whether a 
deposition should be admitted in a proceeding, involving, as this 
does, w r ith all due respect to the gentleman upon the other side, a 
penalty and a disgrace, — a penalty heavier than falls upon a man 
under anv ordinary criminal charge. But I do not see that it is 
necessaiy to determine now exactly what stand should be taken 
upon it. Of course, if that deposition was taken b} r Mr. Wadleigh, 
and we were represented at the taking of it, it would be proper for 
us to make our objection, whatever it ma} T be, and have the objection 
go into the deposition; and then it will be time enough, when it is 
presented here, to determine whether or not it is admissible. And 
that is the rule, as I understand it, in regard to all depositions. 
They are taken w T hether the counsel on the other side agree that they 
may be taken or not; and if they have been furnished with sufficient 
notice, and are present, the} T then state to the magistrate the objec¬ 
tions which they have to the deposition as a whole, or to the deposi¬ 
tion in any of its parts ; and, viicn that deposition is presented to the 
tribunal for the benefit of which it is taken, then the question is 
determined for the first time whether or not the deposition is admis¬ 
sible. But it is not the proper course of proceeding, it seems to me, 
to attempt to determine now, in advance, w r kat properly comes up 
on the presentation of the deposition. 

The Chairman. The idea of the Committee was not to determine 
whether this particular deposition should be received,—that is, my 
object was not,—because that, as the counsel suggests, is always 
determined in each particular case on the cause shown, but to de¬ 
termine whether any deposition should be allowed. Mr. Wadleigh’s 
remarks were mainly addressed to that point. 

Mr. Burdett. It seems to me, Mr. Chairman, that is rather dis¬ 
cussing a moot question, which we want to avoid as much as possible. 
It does not seem to me that that general proposition has as yet 
reached this tribunal. 

The Chairman. Mr. Wadleigh has given notice he should ask for 
certain depositions. 

Mr. Burdett. For a certain deposition, and that may or may not 


1882.] 


SENATE —No. 150. 


28 


raise the question whether other depositions are admissible. I 
should certainly say, without hesitation, that if more than one were 
offered, or any substantial number were offered, the}' should not be 
admitted : and I will not put that upon the ground that there is a 
similiarity or analogy between this proceeding and a criminal pro¬ 
ceeding ; but I will put it upon the ground which the counsel for the 
petitioners has just presented; viz., the exercise of the discretion 
and good judgment of this Committee, representing the two branches 
of the Legislature. Now, if there is any one objection which is 
fundamental to this whole proceeding, it is that a man is substantially 
put upon trial before persons who do not ultimately determine the 
issue. Now, without presenting, except for myself, any views in 
relation to the matters about which I am just to speak, I may say 
that last year we said, and we repeat, — it is proper for me to 
say that, — we repeat that the proper tribunal, and the only proper 
tribunal, for the trial of charges involving official misconduct, is a court 
of impeachment, sitting as the sworn judges of the magistrate who is 
brought before them ; to wit, the Senate. There the man has an 
opportunity, in the first place, of having a decision which is final. 
In the second place he has an opportunity, not only of being met face 
to face by the witnesses against him, but to meet his judges face 
to face; while in this proceeding he meets eleven gentlemen, 
some of whom attend one day, and some of whom attend another. 
These gentlemen report to their respective bodies, and, as was the 
case in relation to one of the bodies to whom they reported in 1881, 
no particular attention was paid to what their finding was. They 
were the only persons who had seen the witness face to face, and 
who were authorized — I don’t mean in a legal sense, but who were 
actually enabled — to determine what the value of the testimony of the 
various witnesses was. Now, then, if we go still another step from 
the safe ground, and say that not even these eleven gentlemen, who 
represent the bodies which have constituted them, shall see the wit¬ 
nesses, then we are living under a system of laws which is more 
dangerous than any I know of within the bounds of these United 
States. The first objection is fundamental, that the bodies themselves 
do not see the witnesses, as it stands to-day; and if we should admit 
depositions, there would be nobody who had the responsibility of the 
decision of the case to any extent who had fulfilled the first definition 
of a court of justice ; viz., a body who sees the witnesses against the 
person accused face to face. So that it seems to me it is perfectly 
clear, taken upon any ground, general or special, legal or other¬ 
wise, that, if any proposition was made here for the general admission 
of depositions, it would be fundamentally wrong; but, whether or 
not, in the exercise of its discretion, the Legislature or one of its 


24 


HEARING —JOSEPH M. DAY. 


[Feb. 


committees may not receive the deposition of u A ” or “ B ” is, per¬ 
haps, a closer question. But when the Chairman asks me, as I 
understand he does, the general question, whether the counsel for the 
remonstrants agree that depositions should be admitted ? I say, em¬ 
phatically, no! for the reasons I have attempted to give. 

Mr. Hill (of the Committee). Were not depositions admitted 
and used in the impeachment of Judge Prescott, Mr. Burdett? 

Mr. Burdett. I cannot answer that, Mr. Hill, so well as can Mr. 
Talbot: he was somewhat familiar with that case, and perhaps he 
can answer it. Whether they were or not, I do not know. 

The Chairman. Only in one instance. 

Mr. Burdett. If they were, Mr. Chairman or Mr. Hill, admitted 
in the case of that impeachment, I pretend to say very few of us 
would justify it to-day. There is no dispute that an impeachment 
trial is a trial in every sense of the word ; and that not only must the 
witness be produced in person, and sworn and confronted, face to 
face, by the respondent, but that the judges must individually give 
their sworn verdict in relation to every charge. And, whatever may 
have been the practice there, I don’t think, if that is true, we can 
follow it as a precedent; and I do not think we feel inclined to do 
so. 

Mr. Hill (of the Committee). Were depositions admitted in the 
impeachment of Secretary Belknap, Mr. Wadleigh? 

Mr. Wadleigh. Yes, sir: almost wholly. I don’t think a single 
witness was produced ; and I never heard of an} 7 such doctrine as has 
been announced here. Now, in the first place, Mr. Chairman and gen¬ 
tlemen, the analogy which my brother Burdett seeks to set up and main¬ 
tain between courts and a committee of the Legislature, is absurd. 
A court is a body which determines a certain thing ; a committee of the 
Legislature is like a master in chancery or an auditor, or somebody 
to whom the court sends a certain question to be tried. That officer 
of the court may receive depositions, or he may not. In all patent 
suits, in nearly all equity suits, he receives depositions. The court 
itself, which decides the question, never sees the witnesses at all in 
these proceedings; and inasmuch as this Committee is simply a body 
authorized by the Legislature to report whether or not, in their opin¬ 
ion, the public good requires the removal of Judge Day, there is no 
ground in the world for saying they have not the right to get ail the 
evidence they can bearing upon that question, whether that evidence 
is according to the rules of law or not. They might even decide 
that public opinion was such with regard to a certain official, that, 
whether he was innocent or guilty, the public good required that he 
should not hold an office, the possession of which office, and the proper 
performance of its duties, required the confidence of his fellow-citizens. 


1882.] 


SENATE — No. 150. 


25 


I do not know what this witness will testify to. It may be that 
the matters which he will testify to will require new specifications. 
I intended to see him, but it has been impossible. I want to take 
liis deposition ; I want the counsel on the other side to be pres¬ 
ent ; it is in Judge Day’s neighborhood, and I want him to be present. 
This gentleman, whose deposition I propose to take, was a long time, 
a very long time, more than a score of years, the sheriff of the county 
of Barnstable. His relations with Judge Day in all respects were in¬ 
timate : he knows all about him. I think he must know about many 
of these charges. I have endeavored to ascertain exactly what he 
would testify to ; but my engagements have been such, it has been 
impossible. I bring up the question now because I want to give the 
counsel on the other side notice that I intend to take Mr. Burslcy’s 
deposition, so that there can be no complaint that the}’ did not have 
all the notice it was possible to give them. 

The Chairman. Are there any further suggestions to be made by 
either of the counsel with regard to procedure, etc. ? 

Mr. Wadleigh. Let me add one thing more, because I want the 
Committee to feel satisfied. The uniform rule, so far as I have 
known elsewhere in such cases, is, that the testimon}’ received b} r the 
Committee should be in writing, and filed. Committees have refused 
to receive the testimon}’ of a witness viva voce. 

Mr. Talbot. Legislative subjects were before them? 

Mr. Wadleigh. Sometimes, and sometimes not. In the Belknap 
impeachment case, the testimony was in writing, — I think all of it, 
at any rate a large portion of it. 

Mr. Bruce (of the Committee). I did not catch the gist of your 
suggestion. 

Mr. Wadleigh. My suggestion was, that, in a proceeding of this 
kind, it is not the uniform practice of committees to require living 
witnesses to be brought before them, but to receive written testimony. 

Mr. Burdett. And Mr. Talbot’s answer to that was, as I under¬ 
stood it, that you were speaking, of course, in relation to legislative 
matters, — there being no such thing known to the Constitution of 
the United States as the removal of a judge by any process similar to 
the present one: so there is no analogy between the two cases 
whatever. 

Mr. Wadleigh. Although the Constitution of the United States 
has not given Congress the power referred to, this proceeding is no 
less a legislative proceeding. The question is whether the public 
good requires the removal of Judge Day from his office; and this 
Committee is authorized by the Legislature to take what evidence they 
see fit, and report what they think about it. 

The Chairman. I understood you gave notice to the other side, 


26 


HEARING — JOSEPH M. DAY. 


[Feb. 


Mr. Wadleigh, that on Friday 3’ou should offer a motion in regard to 
applying the evidence of last year to those specifications of charges 
to which you think the evidence is applicable? 

Mr. Wadleigii. Yes, sir, Mr. Chairman ; and let m} f friends on 
the other side understand that I now propose to state specifically the 
grounds on which we rely. 

The Chairman. All of them? 

Mr. "YVadleigh. All of them. I do that at the suggestion of the 
Chairman. Then, of course, the evidence of last year will not apply, 
and cannot be considered, except so far as it is applicable to the 
charges which we now make. 

Adjourned to Friday, Feb. 24 , at 10 o’clock a.m. 


1882.] 


SENATE — No. 150. 


27 


SECOND HEARING. 


Room 14, State House, Feb. 24,1882. 

The Committee met at 10.45 a.m., Senator Jennings in the chair. 
Charles P. Thompson appeared with Messrs. Talbot and Burdett in 
behalf of the remonstrants. 

The Chairman. A quorum of the Committee being present, we 
will proceed with the hearing. The petitioners have filed their speci¬ 
fications as follows : — 

GROUNDS UPON WHICH JUDGE J. M. DAY’S REMOVAL 

IS ASKED. 

I. 

That he has been in the practice and habit of improperly and illegally acting 
as counsel for and advising with executors, administrators, and guardians, and 
other parties to proceedings in the probate court for the county of Barnstable; 
and that he was improperly and illegally retained and employed as counsel in 
the following instances: to wit, — 

1. In 1858, in reference to the will of Daniel Cummings. 

2. In 1867, in the case of Noble P. Swift, a debtor in insolvency. 

3. In 1873, for Eleazer Nickerson, administrator of Seth T. Nickerson. 

4. In 1873, in proceedings for partition in which Reuben Young and Enos 
R. Young were parties. 

5. In 1875 or 1876, in the case of Samuel Pitcher, administrator of the estate 
of Edward J. Carroll. 

6. In 1876, in reference to the will of Jonathan Kelly. 

7. In 1877, in the case of Ambrose N. Doane, administrator of the estate of 
Joseph C. Lawrence. 

8. In 1878, in the case of Samuel Snow, guardian of Ada Stevens, in refer¬ 
ence to real estate claimed by Morse and Holmes. 

9. In 1880, in the case of Mary M. Goodspeed, administratrix of the estate 
of Levi L. Goodspeed. 

10. In 1881, in the case of Nathan Crocker, administrator of the estate of 
Nathan Crocker, where the town of Barnstable was a party. 

11. I n - ? in the case of Bradford L. Crocker, executor of the will of Betsey 

Kelley. 

12. In-, in the case of Isaiah Gifford, administrator of the estate of-. 

II. 

That he improperly and illegally sat and acted as judge of said court, being 
or having been counsel in the matters above specified, and has been in the 
practice and habit of so sitting and acting. 

III. 

That he has been privy to the taking of illegal fees by the former register of 
said court, and has counselled and advised the same. 


28 HEARING —JOSEPH M. DAY. [Feb. 


IV. 

That he wa 5 * privy to and consented to the violation of law by said former 
register of probate in not keeping a cash-docket open at reasonable times to the 
inspection of the public, and in not accounting for and paying over the fees 
received by him quarterly, as required by law,, to the Treasurer of the Common¬ 
wealth. 

Y. 

That he did not audit said register’s quarterly accounts, and direct what 
sums he should pay over to the Treasurer of the Commonwealth, as the law 
required. 

YI. 

That in 1S7S, on the cars near Cohasset Narrows ; in 1870, at Davis Hotel 
in F.dmouth; and about 1873, in the cars going from Boston to Barnstable; and 
at other times and places, — he was intoxicated under circumstances calculated 
to bring his office into contempt. 

VII. 

That in 1871 he treated Mary C. Paddock, at the probate office in Barnsta¬ 
ble, with discourtesy and rudeness; and in 1879 he treated Clarissa Nickerson, 
executrix of the will of Henry Nickerson, and a suitor in said court, with such 
harshness and rudeness that she fainted. 

VIII. 

That about the year 1874 he wrongfully demanded and received from Alice 
Crowell, now Alice Newcomb, the sum of fifty dollars, she being then admin¬ 
istratrix of the estate of Willard A. Crowell. 

IX. 

That in 1861, while judge of probate, said Day was appointed collector of 
customs for the district of Barnstable, with the understanding that he would 
resign the office of judge, but that he did not so resign; that, while holding both 
said offices, he corruptly demanded and received from officers, recommended 
for appointment by him as such collector, sums varying from thirty-five dollars 
to one hundred dollars each, amounting in all to about fifteen hundred dollars; 
that, after holding both said offices for some months, he resigned said collector- 
ship for a pecuniary consideration, and with the understanding that said officials 
already then appointed on his recommendation should not be disturbed during 
their terms of office. 

B. WADLEIGH, 

Counsel for Petitioners. 

The Chairman. Are the remonstrants ready to file their answer 
and plea, if any? 

Mr. Bcrdett. Mr. Chairman and gentlemen, the remonstrants 
have three several papers to file ; and I will read them, with your per¬ 
mission. The first reads as follows : — 

COMMONWEALTH OF MASSACHUSETTS. 

In Joint Special Committee of both Houses. 

In the matter of the petition of Laban Baker, 2d, and others, praying for the 
removal, by address, of Joseph M. Day from the office of judge of probate and 
Insolvency for the county of Barnstable. 


1882.] 


SENATE —No. 150. 


29 


Motion. 

And now come tlie remonstrants in the above-entitled matter, and not 
admitting, but expressly denying, tlie truth of the charges hereafter referred to, 
move the Committee as follows: — 

That charge IX. of the charges and specifications filed before this Committee, 
entitled “ Grounds upon which Judge J. M. Day’s removal is asked,” relating 
to alleged misconduct in a federal office in 1861, be stricken from said charges 
and expunged from the record, because said charge IX. is irrelevant, imperti¬ 
nent, and scandalous, having no bearing upon the matter under consideration. 

By their Attorneys, 

CHARLES P. THOMPSON, 
THOMAS H. TALBOT, 

E. W. BURDETT. 


The next is the preliminary answer, which I ’will read : — 

COMMONWEALTH OF MASSACHUSETTS. 

In Joint Special Committee of both Houses. 

In the matter of the petition of Laban Baker, 2d, and others, praying for the 
removal, by address, of Joseph M. Day from the office of judge of probate and 
insolvency for the county of Barnstable. 

Preliminary Answer of Remonstrants. 

And now come the remonstrants in the above-entitled matter, and before 
making general answer to the charges and specifications filed before this Com¬ 
mittee, entitled “Grounds upon which Judge J. M. Day’s removal is asked,” 
and say as follows: to wit, — 

I. That neither the remonstrants or respondent ought to be required to 
answer to the charges and specifications entitled as aforesaid, the same being 
presented for the first time to this Committee; that they ought not to be re¬ 
quired to answer to any charges, except such as have first been submitted to 
the Senate and House of Representatives; and that the filing of charges and 
specifications before a Committee in the first instance is irregular and improper, 
and does not impose upon the Committee any right or duty to hear and report 
upon the same. 

II. That they ought not to be required to answer said charges and specifica¬ 
tions, because they are of the same general nature as, and substantial repe¬ 
titions of, the charges and specifications presented to and passed upon by the 
General Court of 1881; and that the subject-matter upon which are based such 
of said charges and specifications as were not contained among those presented 
in 1881 existed at that time, and should then have been presented and heard, if 
relied upon by the petitioners. 

III. That they ought not to be required to answer said charges and speci¬ 
fications before this Committee, because the same are charges and specifications 
of misconduct and mal-administration in offices, and, if true, render the said 
Joseph M. Day liable to impeachment, and cannot properly be inquired of, 
except in a court of impeachment, where such matters are solely cognizable. 

By their Attorneys, 

CHARLES P. THOMPSON, 
THOMAS IL TALBOT, 

E. W. BURDETT. 


30 


HEARING —JOSEPH M. DAY. 


[Feb. 


The answer follows, and it reads thus : — 

COMMONWEALTH OF MASSACHUSETTS. 

In Joint Special Committee of both Houses. 

In the matter of the petition of Laban Baker, 2d, and others, praying for 
the removal, by address, of Joseph M. Day from the office of judge of probate 
and insolvency for the county of Barnstable. 

Answer of Bemonstrants. 

And now come the remonstrants in the above-entitled matter, and affirming 
that they ought not to be required to answer the charges and specifications 
filed before this Committee, for the reasons set forth in a preliminary answer 
heretofore filed by them, but in compliance with the order of said Committee, 
and say as follows: — 

That, upon their information and belief, they deny each and every of said 
charges and specifications, as fully and particularly, as if each and every of 
them were herein specifically and separately denied. 

And they further say, upon their information and belief, that the said 
Joseph M. Day is not guilty of any of the violations of law, or of any of the 
other matters and things alleged in said charges and specifications. And, in 
relation to the ninth of said charges, they further say, that the same is, upon 
the face of it, irrelevant, impertinent, and scandalous, and ought to be stricken 
from the record of these proceedings, as an allegation in no way connected with 
or bearing upon the matters now under investigation. 

By their Attorneys, 

CHAELES P. THOMPSON, 
THOMAS H. TALBOT, 
EVERETT W. BURDETT. 

All these I file with the Committee at this time. 

Mr. Talbot. Mr. Chairman, I hold in my hand a communica¬ 
tion which Judge Day has requested me to present to the Committee ; 
and he deems it most respectful to the Committee that I should read 
it, if I may be allowed to do so. 

The Chairman. If y-ou will wait one moment, Mr. Talbot, we 
would like to look at these papers. [The Committee consulted 
briefl}'.] I would like to say that the opinion of the Committee is, 
that it is rather peculiar that a third party should come in, and file 
an answer to certain specifications, instead of the party^ charged. 

Mr. Talbot. That may- or may T not be improper. I submit that 
the Committee allow us to go on a little farther. 

Mr. Thompson. I had supposed that this was substantially" a case 
between the petitioners and the remonstrants ; that the remonstrants 
were as really before the General Court as the petitioners, and that 
they had certainly as vital an interest in this matter as the peti¬ 
tioners; also that it was as important for them that Judge Day 
should be retained in the position which he has filled for so many 
years with credit, as it was to the petitioners that he should be 


1882.] 


SENATE —No. 150. 


81 


removed for tlieir satisfaction. And I supposed, certainly, it was 
most respectful to the General Court, and most proper, for the case to 
be heard between the parties most vitally interested ; that is, the 
people of the district: but whatever action the Committee shall deem 
it right and proper for Judge Day to take in the premises, I will 
take, and will submit with all deference to the judgment and determi¬ 
nation of this Committee. And further, the counsel for the remon¬ 
strants thought it would be more proper and appropriate for them to 
be heard first upon these preliminary questions, and to have them 
determined by the court, because we have the fullest confidence that 
the determination of these questions will render it unnecessary for 
Judge Day to appear before the Committee. 

The Chairman. Mr. Talbot, the Committee would like to have 
some idea of the nature of the communication, — whether it is testi¬ 
mony, or something in the form of pleading, or statement? 

Mr. Talbot. It is not testimony. It is in the form of pleading. 
It is Judge Day’s answer to those charges. It is a paper which I 
think must be read. 

Mr. Talbot then read the following : — 


Barnstable, Feb. 23,1882. 

To the Joint Special Committee of both Houses of the Legislature, to which ivas 
referred the petition of Laban Baker, 2d, and seven others, praying for my 
removal, by address, from the office of Judge of Probate and Insolvency for the 
County of Barnstable. 

Gentlemen, — I have received the charges and specifications filed against me 
by the counsel for the petitioners in compliance with the order of your Com¬ 
mittee, and in response thereto I desire to submit the following: — 

These charges and specifications I find to be substantially the same as those 
which were fully heard before a Joint Special Committee of the Legislature of 
18S1. So far as there is apparent substance in any new allegation, it is at most 
merely a new specification under one or another of these old and fully disposed- 
of charges, something then existing, and that must have been well known to 
my accusers. 

The truth of all these allegations I most emphatically deny. The ninth 
charge is without foundation in fact, and bears upon its face conclusive evidence 
that it ought not to be considered by your Committee. 

With great respect for, and entire confidence in, the tribunal before which I 
am called, permit me to state to you, and through you to the honorable body 
you represent, briefly, my reasons for the course hereinafter indicated. 

First of all, gentlemen, I desire to call your attention to the fact, that every 
charge urged against me last year was of an impeachable offence; and every 
specification under these charges, if proved or alleged in fact and motive, was a 
sufficient foundation for and justification of the charge to which it belonged. 

My claim then was, that, for an impeachable offence, a judicial officer of the 
Commonwealth of Massachusetts had the right to be tried by the only constitu¬ 
tional tribunal provided for the consideration of such offences; that is, a tribu¬ 
nal before which alone a trial could be had under all the safeguards provided by 
that same Constitution against the destruction of judicial honor, and the tenure 


HEARING — JOSEPH M. DAY. 


32 


[Feb. 


provided for the judicial servants of the Commonwealth, and one that could 
render a final and conclusive judgment. 

That claim was waived for one reason and one only; viz., the apprehension 
that a persistence therein, and action in accordance therewith, might possibly 
be regarded as an excuse for not meeting in a prompt and proper manner 
charges of personal and official misconduct. 

As a consequence, I passed through weeks of exhaustive investigation cov¬ 
ering the entire period of my official life (more than twenty-three years); 
and I do not need to recall to the attention of some of your body, if of any, 
that the result was the unanimous recommendation of a joint special commit¬ 
tee of the body you now represent, that the petitioners for my removal have 
leave to withdraw. 

Now, gentlemen of the Committee, after all this, I feel that I have the right 
to say that my claim of rvjlit is the same this, as it was last, year, and to point 
out to you, that to pursue me with proceedings for removal by address, upon 
charges which, if true, are proper charges upon which to base articles of im¬ 
peachment, is, if not illegal and unconstitutional, most cruel and unjust, be¬ 
cause, — 

1st, While members of the House and Senate may vote the address asked 
for, they may do so without regard to the question whether or not a single 
charge against me has been sustained by proof. 

2d, In this event, no reasons for my removal from office appearing of record 
excepting the charges referred to, these charges must and will inevitably be 
taken by the public to have been proved, while not one of my judges will be 
responsible under oath for the apparent findings against me. 

And I further submit to you, gentlemen, that to permit the re-opening of 
charges against me, disposed of by the Legislature of last year, is to the last 
degree oppressive, because, — 

1st, My presence before the Legislature year after year as a defendant 
against proceedings involving my right to hold my present position, will neces¬ 
sarily inspire the suspicion that I am unduly and indelicately anxious to retain 
the same. 

2d, If these charges are not now to be taken to be res adjudicata in my 
favor, there can be no action, judgment, or finding by this Legislature that can 
make them so; and, in pursuance of a threat against me by a promoter of 
(though not a petitioner for) this year’s proceedings, I may be called upon 
to spend my last dollar, and then meet with defeat, for the sole reason that my 
means are exhausted. 

And therefore, Mr. Chairman and gentlemen of the Committee, I most re¬ 
spectfully submit whether I ought to appear before you as a party interested in 
this investigation until the proper tribunal shall have had presented for its con¬ 
sideration questions to determine,— 

1st, Whether or not a judicial officer of this Commonwealth may be legally 
removed from office by address, upon charges that, if true, would warrant his 
removal by impeachment. 

2d, Whether charges against a judicial officer of this Commomvealtli upon 
proceedings for his removal by address, once investigated and passed upon by 
the Legislature, are, or are not, res adjudicata ; and, if yea, to what ex¬ 
tent. 

In order, however, to leave no room for the suggestion that I am not now as 
ready as I was last year, and as I ought to be at all times, to meet my accusers 
face to face, permit me in conclusion to say that I shall at any time welcome 
the opportunity to meet any and all charges against my personal or official 


1882.] 


SENATE — No. 150. 


33 


record before any tribunal that has the power to say, once and for all, “ Not 
Guilty” as well as “ Guilty.” 

I have the honor to be, Mr. Chairman and gentlemen of the Committee, 

Very respectfully your obedient servant, 

JOSEPH M. DAY, 

Judge of Probate and Insolvency for the County of Barnstable. 


The Chairman. We receive the communication, and file it with 
other papers in the case. 

Mr. Thompson. Mr. Chairman and gentlemen, the first matter in 
order to which I ask your consideration is, the motion made by the 
respondents to strike out from the record the ninth allegation, which 
is an allegation of malfeasance by a federal officer, by Judge Day 
while holding a federal office. As in our view this is in no way 
connected with the office of a judge of probate and insolvency, and 
it is a subject which I may say was certainly in the minds of the 
petitioners last year, and one which those who were personally fa¬ 
miliar with Judge Day, and knowing the situation, did not deem it of 
importance enough even to suggest — and I suppose now the main 
charge here is — that he held, at the time he was judge of probate 
and insolvency, a federal office. It is true, that for a short period 
Judge Day was also collector of the port of Barnstable, but, they 
say, 44 with an understanding.” We say, that is altogether too 
indefinite; and it has no meaning of itself. Understanding with 
whom?—with the President of the United States? with the Gov¬ 
ernor of the Commonwealth? with the people of the district of 
Barnstable? with the people of the count}’ of Barnstable? It does 
not allege with whom the understanding was ; it does not allege 
any agreement; and it fails to assert whether the understanding was 
on his part or on the part of the parties with whom he may have con¬ 
ferred in reference to the obtaining of this office,—whether with the 
President of the United States, or with the Governor. And I submit, 
that, upon the face of the allegation, it is apparent there was no agree¬ 
ment made on the part of Judge Day with anybody, and that there 
is nothing in it really which alleges any bad faith on his part; that 
he acted with reference to the President of the United States, from 
whom he received his commission, or the Governor of the Common¬ 
wealth, or any other person, in any other manner than that which was 
honorable and just. In fact, the very mode in which this allegation, 
that there was an understanding, is made, shows that there is no 
foundation for it whatever. And in the first place, before he can be 
charged with bad faith to anybody, it ought to be specified in detail 
when and in what matter he has been guilty of bad faith. Now, in 
the next place, it says that he has received money from parties who 


34 


HEARING —JOSEPH M. DAY. 


[Feb. 


were nominated or recommended by him. Mr. Chairman and gen¬ 
tlemen, this is bringing in here the case of ever}" inspector or 
deputy-inspector, or whatever their title may be, along the whole 
coast of Cape Cod ; and it is making the allegation against every one 
of them of corruption. It alleges that they obtained their offices 
through bribery ; and the petitioners, in order to say something here 
against Judge Day, charge substantially every official in that custom¬ 
house, however great the number may be, — I suppose it is not large, 
probably some ten or a dozen, — they charge each and every one of 
those with having obtained their offices through bribery. That, I 
submit, is a charge which ought not to be considered here by this 
Committee, if there is not some real necessity for it; and each one 
of those persons who is charged here with the offence of corruption 
ought not to be called upon, because they are put on trial. It is a trial 
of each one of those parties, the allegation being in substance that 
each one of those men has been guilty of bribery and corruption. 
And then it goes on to state that which cannot be true. It says 
he resigned his office for a pecuniary consideration, charging the 
President of the United States almost with corruption. Certainly 
it is charged that Judge Day’s successor was corrupt: and if they 
are going to try Mr. Swift, who was his successor, I presume a 
very estimable man, saying that he was guilty in this matter of 
corruption, — because there is an issue raised in each and every one 
of those cases, — it is certainly unjust to the collector ; and I cannot 
believe — there is not an allegation here that warrants any one in 
believing — that the successor of Judge Day in the office of collector 
of Barnstable obtained his office by any corrupt, wicked bargain. 
If it was not Swift, who was it? Thev do not allege. It is too 
general: they do not allege by whom this consideration was paid. 
There is no opportunity for us here to make any defence with regard 
to that matter. If they were in possession of the facts, they most 
assuredly would have stated them. And to say that, after holding 
said offices for some months, he resigned his collectorship for a 
pecuniary consideration, without saying to whom that consideration 
was paid, or stating any of the circumstances in relation to it, is a 
charge of such general nature and character, that it shows conclu¬ 
sively they are without facts which will justify the making of it. 
And then it says that he made a bargain with somebody that the 
officers should be retained. Why, that, of course, was wholly beyond 
his control. After he ceased to be collector of the port of Barn¬ 
stable, he had no control at all over the officers of the custom¬ 
house. And to say that he resigned with the understanding that all 
of those who had been appointed by his recommendation should be 
continued in office, is saying certainly that he was doing something 


1882.] 


SENATE — No. 150. 


35 


which was entirely beyond his control; and it was merely a vain 
act. I need not say that this was twenty-one years ago. I need 
not say again that this is a matter which does not in any way relate 
to his position as judge, and that it is a matter of political scandal. 
I do not believe that the party that came into power in 1861 , that 
never had held any federal office from the formation of the govern¬ 
ment, commenced with such corrupt practices. I do not believe that 
the men who acted with Judge Day, who had been fighting for 
twenty years under the old abolition banner, never expecting to 
have an office, never seeking or striving for office, at the first oppor¬ 
tunity they had, after coming into power, began with bribery and 
corruption of the grossest nature and character. It is an impeach¬ 
ment of the President of the United States; it is an impeachment 
of the Governor of the Commonwealth ; it is an impeachment of all 
the people of the Cape, whose representatives were put in high 
positions. The men who received those appointments as inspectors 
and deputy-inspectors were selected at the suggestion of the people 
of the Cape, because they were honorable and meritorious and 
praiseworthy. And now they come in here, and charge right upon 
the threshold, that office was corrupt from the foundation to the top 
stone ; that there was not a man who obtained office there but who 
obtained it through bribery; and that the first man who obtained it 
must have secured it for the purpose of fleecing money out of the 
honest people of the Cape, who had been laboring with him in a 
common cause. I say, it is too much to ask any one to believe. 
All this matter has been known for twenty years, if it be a fact. 
If it is a fact, it was known then; and it was never brought 
up against Judge Day, for the reason it never existed! They cite 
here, upon the face of this, not one name of any person that ever gave 
a dollar to Judge Day ; they name no person here from whom Judge 
Day ever received a dollar; they name no agreement made by him 
with anybody. The}* say there was an understanding ; but an under¬ 
standing with whom ? They do not specify any occasion ; and I ask 
now most earnestly that this Committee will not be diverted from the 
examination of the real question, which is the official character of 
Judge Day while holding this office of judge of probate and insol¬ 
vency, and go into an inquiry of what took place twenty-one or 
twenty-two years ago, in reference to his administration in a federal 
office. That is a matter that comes under the jurisdiction of the 
President of the United States, or of some of the departments, or of 
Congress. And I submit that it cannot be attended with any benefi¬ 
cial effects here ; and it apparently is brought in here because there is 
not any thing which is real and substantial in his conduct as judge of 
probate and insolvency calling for an unfavorable opinion. It is 


§6 HEARING — JOSEPH M. DAY. [Feb. 

brought in here to see if some prejudice cannot be raised against 
him. I have said enough already to give the Committee to under¬ 
stand our position with reference to this ninth article, and therefore I 
will not further occupy the time of the Committee upon that proposi¬ 
tion. 

Now, if your honors please, in reference to the second matter, 

I consider that there are no charges made before the Legislature. I 
think that of great importance in this particular. Had the charges 
been made before the Legislature, I feel confident that they would 
have at once seen that they were of the same general nature and 
character as those made last year ; and, being of the same general 
nature and character, they would not have referred them to a Com¬ 
mittee. They would have said, these matters have been heard and 
determined. It appears to have been the purpose, on the part of the 
petitioners, to keep from the Senate and the House what they pro¬ 
posed to bring before this Committee. I call your special attention 
to the wording of the petition for the present year. It is as follows : — 

“ To the Honorable Senate and House of Representatives in General Court 
assembled. 

“ We, the undersigned, citizens of the county of Barnstable, being the lead¬ 
ing petitioners in this behalf before the Legislature of 1881, earnestly pray that 
both Houses of the Legislature may address the Governor and Council, and 
recommend the removal of Joseph M. Day from the office of judge of probate 
and insolvency for the county of Barnstable.” 

When they presented their petition last year, they submitted the 
grounds upon which they asked that their petition should be considered 
and granted. When they came this year, they asked it without any 
reason at all. They do not say that they have any cause of complaint 
at all. And I say, again, that this is important, because it left the 
Senate and House without any information as to what the allegations 
were to be; and they referred the matter to this Committee. What 
I have the honor to offer at this point is this : that having submitted 
their charges to the Committee, and the Committee having ascertained 
here that the charges are substantially the charges made and heard and 
determined in 1881 , it will be the pleasure of the Committee to report 
that fact back to the Senate and the House, and ask them whether 
they wish the same proceeding to be gone over again with reference 
to the same charges. Of course it may be said that the objection we 
have made here is a formal one ; but I submit that it is a matter of 
substance. And the only way to place the matter right is for the Com¬ 
mittee having these allegations, and ascertaining that they are sub¬ 
stantially the same, to report them to the House and Senate: and, if 
those bodies deem it right and proper and wise that they should be 


1882 .] 


SENATE —No. 150. 


37 


further considered, they will refer them back to the Committee for 
further determination ; if not, the}’ will excuse the Committee from 
the further consideration of the question. 

Now, I have the honor to submit that the hearing of last year ought, 
upon all sound principles of procedure, to be taken to be conclusive 
and final. It may be said, and it undoubtedly will be, and correctly 
said, too, that there are no rules applicable to this proceeding by 
which the Senate and the House are to be governed; that it is wholly 
a matter within their own discretion. But I submit that it should be 
governed by analogy; that the trial of a case of this kind ought to 
have the same provisions as ordinary trials in courts of justice ; and 
that while they have the power to do it, it being within their discre¬ 
tion, they should exercise a wise and sound discretion by not, from 
year to year, considering precisely the same charges, and putting a 
party upon trial year after year for the same offence, the accusers 
hoping that at some time they may find a Legislature sufficiently 
favorable to them to grant their petition, knowing that if Judge Day 
succeeds twenty times out of twenty-one, and they succeed the 
twenty-first, that they have got the game. It is hardly fair to put 
Judge Day in this position, and he can be put in that position by the 
petitioners for no other reason than that of personal annoyance. It 
may be said that the petitioners have the right to have their case 
heard as often as they please. They have certainly no more rights 
here than the respondents. They have no more rights than Judge 
Day has in the matter, and the law is to be administered with a 
sacred regard for the rights of all parties ; and, when a proceeding is 
oppressive and unjust, I submit that the petitioners, while they may 
have the right to petition, they have not any claim on the Legislature 
to have their case re-opened and reheard. Why, it might just as well 
be claimed that a case in any court of law, when it is found against a 
party, may be re-opened and heard again. This, I submit, is of 
great importance ; because, if the Legislature take that view, which I 
think they will, it will save this Committee from a protracted exam¬ 
ination, it will save the Commonwealth from a good deal of expense, 
it will save the petitioners and the remonstrants both a good deal of 
trouble, and will be doing substantial justice to all. This is not a 
legislative question at all. This question does not come before the 
House and the Senate as the Legislature of Massachusetts, to pass 
an act that one of its officers shall be removed ; but the Constitution 
has appointed the Senate and the House of Representatives as bodies 
to perform certain acts in reference to applications of this kind. And 
there is no analogy at all between the ordinary forms of legislation 
and an application of this kind. This, I submit, is a hearing in the 
nature of a trial, and not an attempt to pass an Act. There are rea- 


38 


HEARING — JOSEPH M. DAY. 


[Feb. 


sons why parties desirous of adopting some new measure of progress, 
feeling confident of its ultimate success, should bring it to the atten¬ 
tion of the Legislature year after year, hoping that the investigation 
of the subject, the calling of the minds of the Commonwealth to it, 
will and must ultimately lead to a favorable consideration; but noth¬ 
ing of that kind can be urged in favor of a proceeding like this. I 
say again that this is in the nature of a trial; and although the Con¬ 
stitution of Massachusetts does not provide that charges shall be 
made and filed with the Legislature, as in most of the States, it was 
no omission on the part of the framers of the Constitution. The} 7 
judged it wholly unnecessary; they took it for granted, that, if an 
application were made of that high nature and character, all the 
forms necessary for the protection of all the parties would be had, 
and that the proceedings, although not particularly defined by the 
Constitution, would be such as would render the action under a pe¬ 
tition of this kind such as to protect fully the rights of everybody. 
And I submit that one of the first of all rights is that a charge of 
this nature shall be heard but once, — that one determination of the 
matter shall be final; and, if any other course is adopted by the Legis¬ 
lature, then there is no end to the pendency of the litigation, except 
it be the life of the party. 

I suppose that Judge Day is a man of perhaps sixty years of age ; 
and in the course of nature — taking the limitation of threescore 
years and ten — he may have ten more years of life yet left to 
him. There is no reason that can be urged for bringing this hearing 
up a second time that will not apply with greater force for a third ; 
they will have the precedent of the second ; and there is nothing 
that can be urged when it comes to the fourth, fifth, sixth, or 
seventh, eighth, or ninth time, because each time will strengthen 
the precedent, and make the proceeding apparently more regular 
and more proper. I say, therefore, for that reason, that it is one of 
the first of rights of Judge Day that this should be finally and fully 
determined. He has had a hearing before, substantially on the same 
charges, at the bar of the Senate and the House, and he should not 
be put again upon trial; and, as I have already stated, I call this 
matter to the attention of the Committee, especially for the purpose 
of saying that the grounds of complaint this year are substantially 
those of last year, and that, therefore, there is no reason why this 
shall be opened. Let me go into the matter a little more in detail. 
The first allegation which they make here — I will not trouble the 
Committee with reading it — is a charge alleging that he has acted 
for parties, administrators, executors, and guardians in his court: and 
they have specified in this the cases of last year, and have brought in 
no specification of any thing which occurred since the last General 


1882.] 


SENATE —No. 150. 


39 


Court, nothing but what must have been open to them, nothing but 
what must have appeared on record in the court, open to them, and 
must have been carefully examined by them ; and there is no reason 
why, if they are to be urged now, they were not urged last year. I 
say, they are merely additional specifications under that count, and 
add no weight to the matter at all. Last year they made a general 
allegation of habits of intoxication ; but, when they came this year, 
they left that out entirety. So clearly was it proven to be false, that 
they didn’t have the face to repeat it; but now they say there were 
three instances of intoxication, all of which were heard and deter¬ 
mined under their general allegation. They come now, and under¬ 
take to put in, as new and independent charges, facts upon which 
they undertook to sustain the general allegation. That is the 
whole of it. This matter down at Davis’s hotel was all gone into 
and inquired about, and it was found last year that there was no 
foundation at all in the charge that Judge Day was a man given to 
the excessive use of spirituous intoxicating liquors ; on the contrary, 
it was shown conclusively that he was a very abstemious man indeed, 
sometimes going a year or more without taking as much even as a 
glass of wine. They allege here what was disproved last year by 
the clear preponderance of evidence. I submit, that to call a man 
in, after making a general allegation, to answer to the specific cases 
by which they undertook to prove the general allegation, after it 
has been proved at the hearing to be untrue, is doing what the 
Legislature never for one moment would sanction. Now, Mr. 
Chairman and gentlemen, I say again, that there is not in these 
specifications an}’ thing of importance that wasn’t fully heard and 
considered last year. And, if this matter is to be heard, there ought 
to be stricken out every thing which relates to last year’s hearing, 
every thing which was settled and determined at that time, and noth¬ 
ing but the new matters which are herein alleged, and which it may 
be claimed were not heard and determined at that time. But, even 
if it is urged that these ought to be heard and determined, the answer 
to it is complete : that they are matters under the general specifica¬ 
tions made last year, they were within their knowledge last year, 
they had the fullest opportunity to present them last year, the peti¬ 
tioners last year and this year are the same, and that there is no excuse 
given or claimed why they were not presented. That ought to be 
a conclusive answer to the request to re-open them. 

Now, if the Committee, upon a careful examination of the charges 
this year and a comparison of them with those of last year, — because 
they are matters of record and open to the inspection of all, —if the 
Committee, I say, upon such comparison, shall be of the opinion, as 
I think the Committee must be, that they are in form and in sub- 


40 


HEARING —JOSEPH M. DAY. 


[Feb. 


stance substantially a repetition of the charges of last year, it will 
be the pleasure of the Committee to refer this matter of further 
hearing of them to the Legislature, and to obtain their direction with 
regard to the subject. I ought to say right here in this connection, 
that last year all of these allegations — substantially every one of 
them — were proved to be unfounded, neither of them was sustained, 
that the report of the Committee was unanimous that the petitioners 
have leave to withdraw, and that the consideration of each particular 
charge in the specifications and the testimon}' will show clearly and 
conclusively they were disproved. Taking the report of the minority 
of the Committee,— and that is of importance bearing upon this ques¬ 
tion which I am now speaking to, — they found, conclusively, I think, 
from the third to the tenth specification inclusive none were sus¬ 
tained. There was nothing to sustain them ; and I think that when 
the Legislature finds that one of their committees has examined each 
one of those several charges, and has ascertained that the}^ were with¬ 
out foundation in fact, they will at least strike them out of the record, 
and will not trouble the Committee with an examination of those that 
have been brought to the attention of the Legislature, and have been 
found to be untrue. They will not want to trouble the Committee and 
burden the proceedings with the re-opening and rehearing of the alle¬ 
gations that have been as fully and as absolutely disposed of as it is 
possible for this Legislature to dispose of them. It is, I submit, the 
same court this year as it was last year. The General Court of Mas¬ 
sachusetts is a court established by the State, and it has its annual 
terms; but it is the same General Court, composed of different par¬ 
ties, to be sure. And, in acting as a court for the purpose of trying a 
case like this, I submit it is the re-opening of it before the same court, 
and there is no reason for its being re-opened at another term of the 
court. So far as general legislation is concerned, that certainly is of 
such a nature and character that each succeeding Legislature may be 
called upon to consider the same subject; but this case does not stand 
differently from what it would in a court of impeachment. It is just 
as much, in the trial of this case, a court, as if it were a court sitting 
for the trial of Judge Day by impeachment; and a finding in his favor 
ought to be as conclusive here as it would be if it were heard and de¬ 
termined before a court of impeachment. Now, in a word, Mr. Chair¬ 
man and gentlemen, I submit that, although technically I admit that 
this may not be plead as res adjudicata , as would be in order in 
a court of justice, still the plea that the charges now are of the 
same nature and character as those that were heard and deter¬ 
mined last year is, in fact, a plea of that general nature and charac¬ 
ter and substance, and that it is as applicable in proceedings of this 
kind as before the General Court a special plea would be in a court 


1882.] 


SENATE —No. 150. 


41 


of justice ; and that it ought to be as applicable and to have the 
same force and effect here as it would in a court of justice, for in no 
other way can justice be properly meted out to a party, because if 
a case is to be re-opened, year by year, upon the same charges, 
upon the same evidence, then there can be no end to an investigation 
of this character; and the bare statement of the proposition that any 
other doctrine will lead to a continuous examination of a case of this 
kind shows clearly and conclusively the necessity for the application 
of this rule, and that it ought — I say again — to be applied with as 
much force here as in a court of justice in the ordinary trial of a 
cause. 

The Chairman. Allow me to interrupt you. Your argument 
hardly has the force, it seems to me, that you intended ; for the House 
voted the address, and the Senate refused. Is it not rather like the 
case of a jury’s disagreement? 

Mr. Thompson. I submit this answer: that, so far as the exam¬ 
ination of the facts was concerned, it was left to the Committee; and 
I understand that the Committee is the real tribunal to hear and try 
this case, before whom we are now appearing. And I submit, when it 
has been heard and determined by the Committee of the House, and 
the facts are found, then it could be reported back that we have had 
the same case substantial!}' as last year, thus stopping the investiga¬ 
tion ; and if they see fit to remove the party after the facts are found 
clearly to be not as alleged, and when it is proved clearly and conclu¬ 
sively in the opposite direction, then the examination before the Com¬ 
mittee certainly is an unnecessary work, and the Legislature, I think, 
would excuse the Committee, — and it has all the power, so far as the 
hearing before itself is concerned, — and make the course, I submit to 
your honors, more in harmony with good reason and sound practice, 
show that the facts are the same as last year, that they were disproved 
last year, and you have no reason to question but what they will be as 
effectually disproved this year. Then the. Committee would report to 
the House, — to the court, because it is a continuous court, — that, 
having found these facts and that they had been determined, and we 
certainly should be saved from a prolongation of this investigation. I 
understand, so far as the action of last year was concerned, it was the 
action on the part of the House in one way, the action on the part of 
the Senate the other way; but I submit that the action on the part of 
the House was not upon the facts found by this Committee. The facts 
found by this Committee upon the charges made were that they were 
not proved. The facts found by this Committee then were that there 
was not any evidence at all, — it was almost to that extent. Then, 
to call upon this Committee to hear and report facts upon a matter 
which has once been heard and determined by the Committee, and 


42 


HEARING —JOSEPH M. DAY. 


[Feb. 


concerning which they are as well advised as they can be, is an un¬ 
necessary proceeding, and one that ought to be called to the attention 
of the Legislature try the Committee. 

And I might say 7 , as to your honor’s suggestion, that, in this case, 

I believe not a man who read the testimony last year voted for the 
impeachment of Judge Day. I suppose there is not a man who ever 
read, who was familiar with, that testimony’, that voted for his im¬ 
peachment. The counsel for the petitioners may 7 say r that is dis¬ 
respectful to the House. It certainly’ is not; because it is a matter 
within the knowledge of everybody 7 that an investigation of this kind, 
covering so much time and requiring so much study, that it is not 
to be presumed that they will do it. It is not to be presumed that 
they 7 would examine and remember that volume of evidence: it is 
difficult for counsel to do it. It is pretty difficult for counsel to 
take testimony 7 of that kind, and scan and weigh it; and the finding 
on the part of the Committee is, I submit, of more importance, 
so far as a presentation of this case is concerned, than a finding 
on the part of the House on the facts ; and it is ordinarily the 
case that the finding of committees of this kind is conclusive. I 
suppose that is a fact that cannot be disputed, that this report came 
in late. There wasn’t time after the report came into the Legislature 
for its careful consideration. And that the proceeding w r as in the 
House is unaccountable. Popular bodies act strangely ; but when 
they act against the advice of committees who carefully examine the 
facts, in a case of this kind, and act against the facts, it is certainly 
always unwisely. Why 7 , y’ou take the case tried in Maine some years 
ago, familiar to everybody 7 as a matter of history 7 . Judge Davis was 
removed, by’ address, by a great majority in the Senate, and by a large 
majority’ in the House ; and they abolished his office, I think ; but the 
next Legislature not only re-established the office, but Judge Davis 
was re-instated in his old position. Any thing but a concurrence on 
the part of the Senate and of the House is an acquittal of itself. It 
was an acquittal. When they failed to convict, they’ acquitted ; and 
I say there is no other position that can be tenable. They failed to 
convict; and, failing to convict, it was an acquittal, and ought to be 
so taken and held ; and, being an acquittal, all of the incidents which 
attach to an acquittal ought to attach to this. In regard to the legal 
question of removal, which is one as to wffiether it should be by’ im¬ 
peachment or by address, it is a matter which I had not prepared 
myself to present; but my associate, Mr. Talbot, has prepared him¬ 
self upon that question. And we have the fullest confidence that the. 
Committee will, at this stage of the proceeding, after the case has 
been winnowed of all other matters, except these matters of an im¬ 
peachable nature and character, say that it is only, if at all, a case for 


1882.] 


SENATE —No. 150. 


43 


a trial by impeachment, to put every thing at rest. I leave that 
matter for Mr. Talbot to discuss. 

The Chairman. I think we will proceed, Mr. Talbot, and have 
you put in your whole case now, as far as it relates to the preliminary 
matters. 

Mr. Talbot. The third specification of the preliminary answer 
of the respondents is as follows : u That they should not be required 
to answer said charges and specifications before this Committee, 
because the same are charges and specifications of misconduct and 
maladministration in office, and, if true, render Joseph M. Day 
liable to impeachment, and cannot be properly inquired of, except in 
a court of impeachment, where such matters are solely cognizable.” 
It is in support of that specification of our preliminary answer, Mr. 
Chairman and gentlemen of the Committee, that I purpose to address 
you. In what passed between the Committee and the Council on both 
sides the other day, the Committee noticed the fact that I had argued 
this question last year, and deemed that as a good reason why I 
should not ask an}’ great extension of time for preparation this year; 
but the little experience that I have had in preparing for the argument 
of law questions has left upon my mind the impression that it is very 
difficult, before the preparation, to say what length of time it will 
take. And the disputant sometimes fails, even when he is himself 
satisfied with his preparation, to cover the ground, in the esteem of 
his adversaries and of the tribunal to which he submits his argument. 
How far this had been my experience in this case I did not on Tues¬ 
day feel at liberty to lay before the Committee. The fact is, however, 
that, owing to circumstances for which the Committee were not respon¬ 
sible, my preparation last year was meagre ; but I went over all the 
ground that I ought to cover. When the counsel on the other side 
came to respond to, and the minority of the Committee, in their 
report, came to review, my argument, they found it defective in 
extent. I had supposed, that, under the written Constitution of 
Massachusetts, it was sufficient for me to confine my consideration to 
that, and to whatever of light I could derive from subsequent practice 
and opinions in this Commonwealth. But if you will carefully read 
the answer which was made to me by the counsel on the other side, 
and the review in the Committee’s report, you will find that I was 
found defective in this broad extent, — 

First, I had not considered the constitutions of the other American 
States; and, 

Second , I had not examined what we may call the Constitution of 
England after and before the English Revolution of the seventeenth 
century. 

Now, Mr. Chairman, you see the extent of labor which was laid 


44 


HEARING —JOSEPH M. DAY. 


[Feb. 


upon me in the preparation of this case. We have thirty-eight 
American States. On an average those States have adopted, first 
and last, at least three different constitutions. That makes about one 
hundred and twenty different American constitutions that I have 
had to examine; and then I have tried to find out something about 
the condition of things in England, both after and before the seven¬ 
teenth century, and successfully, but not so successfully as I should 
have done if more time had been allowed. 

The Committee, in reviewing my argument of last year, called 
attention, I may sa} T , first, in point of chronology, to the Settlement 
Act of England, passed in the reign of George the First. 

Mr. Wadleigh. King William that was passed under. 

Mr. Talbot. There was something like it passed in King Wil¬ 
liam’s reign ; but what the Committee referred to was that of George 
the First. Mr. Wadleigh is correct as to the fact that in King Wil¬ 
liam’s time there was a somewhat similar Act passed. The Commit¬ 
tee, I sa}', called attention to that Act. The English then passed 
a law that the judges should hold their commissions during good 
behavior, but it might be lawful for the king to remove them on 
the address of both Houses of Parliament. And it is that language 
and the supposed practice under it that the Committee quote against 
my construction of the Constitution of Massachusetts. Now, I have 
been able to get a little light on the condition of things in England 
prior to the passage of this Act. I will remark to brother Wadleigh 
that this legislation goes back to Charles the First, as I find from 
some references ; but I have not had time to look it up. 

What was the condition in England? this is the problem I shall 
endeavor to call 3 'our attention to. What was the condition in Eng¬ 
land as to removal of judges prior to the passage of this Act? All 
judicial officers held durante bene placito during the pleasure of the 
king, the chancellor among the rest; and the best light I have been 
able to find, was found in glancing over the proceedings against 
Francis Bacon, Lord Verulam, High Chancellor of England in 1620, 
some months before “The Ma 3 ’flower ” brought to the count 3 ^ of 
Barnstable the ancestors of those men whom I have the honor to 
represent as remonstrants in this case. 

Mr. Wadleigh. From whom are the others descended? 

Mr. Talbot. The petitioners are onl 3 r eight, and I will give them 
the honor of the same descent. Now, in the first place, Francis 
Bacon was found guilty ; and there is the judgment of the House of 
Lords. It is not a judgment of removal from office. That is the 
first point I make. It is not a judgment of removal from office. But 
what was the judgment? That he be fined forty thousand pounds, 
that he be disqualified from holding office, and that he be disqualified 


1882 .] 


SENATE —No. 150. 


45 


to sit in Parliament. I do not know but what I have forgotten one 
part; but the forgotten specification was not removal from office, 
that is plain. 

Mr. Wadleigh. Disqualification to hold? 

Mr. Talbot. Disqualification to hold, but not removal from. 
Now, I call your attention to the fact of the great extent of the judg¬ 
ment of impeachment in England, that it was for general punishment, 
in this case a fine, a fine which sent Bacon in poverty to the grave 
very shortly after, —in abject poverty and destitution. On looking a 
little further, I was interested to find the proceedings, too, in the case 
of the Earl of Strafford, who belonged, at least by name, to a distin¬ 
guished family of the State which the counsel on the other side has 
represented in Congress, belonging to the family of Wentworth, so 
well known in New Hampshire. Strafford was impeached and con¬ 
demned to death for high treason ; but, in the beginning of those pro¬ 
ceedings, 1 find that that bill of attainder was preceded by a bill of 
impeachment. In other words, the indictment against Strafford was, 
in form, that the House of “Commons do impeach Thomas, Earl of 
Strafford.” Now, you see where impeachment went to. It went to the 
extent of all punishment, even to the punishment of death, in Eng¬ 
land ; and this, I shall show you presently, is a governing fact in this 
matter. 

Mr. Wadleigh. And there, brother Talbot, it applied to all 
crimes in any office ; and they are often punished. 

Mr. Talbot. It was one of the broadest kinds of punishment: it 
■was simply limited as to the class of persons that could be impeached. 
They must be peculiar, persons of privilege, or officers, or something 
of that kind, I apprehend. 

I want now to call your attention as to how Chancellor Bacon was 
removed from office. I will give the dates. On the 1st of May, 
the trial having ended, and the House of Lords, having found him 
guilt}*, proceeded to address his Majesty, and ask him to sequester 
the great seal. On the 2d of May King James first sequestered 
the great seal, and gave it to the Lord Chief Justice by commission. 
Now, Francis Bacon is out of the office, and has ceased to be High 
Chancellor ; and on the following da}*, on the 3d of May, the House of 
Lords proceeded to give judgment against him. Now, you see that im¬ 
peachment did not remove from judicial office in England : it could not 
remove from judicial office in England. The same book, I was looking 
at it in great haste, treated another celebrated case in England of an 
earlier date, and that was the case of Chancellor Wolsey, and re¬ 
ferred us, the gentleman who was aiding me, and myself, to “Coke 
on Littleton ; ” and in looking at it we found no light on the matter. 
We found an allusion to it, but nothing elucidating the matter in 


46 


HEARING — JOSEPH M. DAY. 


[Feb. 


hand. There was no other book for me to refer to between yesterday 
afternoon, when I w r as trying to look this up, and to-day, except 
Shakspeare, Mr. Chairman ; and } t ou very well know that in histori¬ 
cal matters Shakspeare is not bad authorit}^. In the play of Henry 
VIII. I found the Duke of Norfolk addressing the chancellor thus : — 

“ Hear tlie king’s pleasure, cardinal: who commands you 
To render up the great seal presently 
Into our hands.” 

No judgment of the House of Lords that he should be impeached, 
and removed from office as High Chancellor. Not at all. It is the 
will of the king that he render into his hands presently the great seal, 
and with that the High Chancellor passes out of office. Now, I have 
shown 3 r ou what impeachment was in England, and what impeachment 
was not in England ; and, at the same time, I have shown } t ou what 
address was. It was the request of the Houses, or one of the 
Houses, of Parliament, after full trial and conviction, that his Majesty 
should be pleased to remove from office the guilty party, the Houses 
of Parliament having no power over the matter of removal from 
office. 

In England, it appears, the process of impeachment was a proceed¬ 
ing to general punishment, including loss of estate, and even of life. 
That is what it was. It was not a process for removal from office. 
This is what it was not. 

Now, did the Americans perpetuate that law? Did the Americans 
perpetuate that institution in any part of it, positive or negative? 
Did thej 7 copy impeachment as a general punishment, and not for the 
purpose of removing from office? Upon this subject the American 
Constitution, and I speak of it now as the English speak of their con¬ 
stitution, and I mean to include the Constitution of the United States, 
and the constitution of every State in the Union. 

There is no one particular upon which the American constitutions are 
more concurrent than this which I am now to state. I have examined, 
as I before stated, from one hundred to one hundred and twenty of 
those constitutions, and, with one, two, or three exceptions, I find this 
principle in them all. It was considered during the Revolution, and 
adopted at once. Let me read it from the Constitution of Massachu¬ 
setts : “ Their judgment ” (the judgment of the Senate as a court of im¬ 
peachment), “ however, shall not extend further than to removal from 
office, and disqualification to hold and enjoy any place of honor, trust, 
or profit under this Commonwealth; ” and then it goes on with 
another specification, which I have not now any reason to comment 
upon, that it shall not even save the party from conviction and pun¬ 
ishment, according to law, in the courts. The American Constitution 
has adopted that provision. Now, what is the effect? The effect of 


1882.] 


SENATE —No. 150. 


4T 


it is, that impeachment in America is a process of reaching officials, 
and not an} r one else ; and, while of course I do not mean to deny 
that it extends to disqualification, I maybe allowed to speak of its 
extending to disqualification as rather an incident than a substance ; 
and I think I ma}^ say that American impeachment is a process for 
removing from office, and for nothing else. It touches nobody but 
an officer. Nobod}^ can be impeached in America but an officer, and 
you cannot harm a hair of his head. There is no such thing as a fine 
of forty thousand pounds, as a punishment like that imposed upon 
Bacon, or being sent to the block as Strafford was sent. It says, in 
the American Constitution, u Impeachment shall be a process for re¬ 
moval from office, and it shall be nothing else.” That is what it 
says. 

The American States having thus adopted, almost created, the 
American process of impeachment, as a process solely for removal 
(and exclusion) from office, for the cause of official misconduct, is it 
easily to be supposed that they then went on to adopt another and 
totally different process for the same purpose? 

If this were the American intent when American constitutions first 
began to be, it ought, in the variety of phraseology which would be 
used in the large number of those different instruments, to appear 
plainly expressed in some one of them. If it does not so appear, 
while the opposite intent does appear, the strong presumption begins 
to arise that such is not the American intent and purport. And, 
wherever the language used by Massachusetts requires construction, 
it should receive construction, not against, but in harmony with, the 
American intent, especially where other rules of construction marshal 
our interpretation to the same conclusion. 

Now, it is in this light that I propose to consider the question of 
what address was adopted for ; and I propose to show what was the 
spirit of the Americans at the time when our Constitution was first 
adopted ; viz., about 1780. Let me make this preliminary matter as 
clear as I may. I understand how we approach this subject. This 
feature of the Constitution of Massachusetts is open to debate. My 
brother on the other side will give you some reasons why you should 
adopt his view, and it is open for me to give you some reasons for 
accepting my own. It is debatable ground. And, if I find another 
constitution has in terms fixed this one way or the other, that does 
not settle it in relation to Massachusetts: but this is why I am going 
to call your attention to the provisions relating to this subject in the 
constitution of other American States ; it is because I want first to 
show the spirit of the American Constitution on this subject at that 
time. 

Of the original thirteen States, two (our neighbors Connecticut 


48 


HEARING —JOSEPH M. DAY. 


[Feb. 


and Rhode Island) continued for a long time under English charters, 
and adopted no constitutions whatever ; and, throwing those out, we 
have eleven left. Of these States, in their original constitutions, five 
made no provision for address whatever, — Georgia, New Jerse} r , 
New York, North Carolina, and Virginia. Of those eleven, Pennsyl¬ 
vania was the only State that made provision for removal by address 
for misbehavior. They put that in words in the Constitution — 
please to note, gentlemen who are taking notes — adopted in 1777. 
And they allowed that provision to stand just thirteen years. 

Mr. Wadlkigh. That was before the establishment of the State 
Government? 

Mr. Talbot. I think your own State formed a constitution in 
1776. 

Mr. Wadleigh. No, sir: it was in ’91. 

Mr. Talbot. Immediately on the Declaration of Independence 
the States began to form their constitutions ; and in that Declaration 
they had already asserted that they were sovereign and independent 
States. In 1780 our Constitution was established ; but I think many 
of the States formed their original constitutions in the years just suc¬ 
ceeding the Declaration of Independence. 

Mr. Wadleigh. I beg your pardon for the interruption. 

Mr. Talbot. It is not unpleasant, Mr. Wadleigh. They allowed 
that provision to stand, I say, for thirteen years; and in 1790 Penn- 
sjdvania struck that provision out, and made an express provision 
that address should not extend to impeachable offences, and thus 
came into line with Delaware, which had made that provision in her 
original constitution of 1782. I have the language here. The quali¬ 
fying words are, “ Causes which shall not be sufficient ground for 
impeachment.” That is the way they put it. And thus not one of the 
original thirteen permanently kept its constitution in terms as my 
brother Wadleigh is going to contend the Constitution of Massachusetts 
is. For the constitutional provisions of the other five are debatable. 
New Hampshire, Massachusetts, and South Carolina are substantially 
alike ; and when we are debating Massachusetts we are debating all 
three, and of course we cannot draw any arguments from either until 
we settle what they are. But there are two other debatable States, 
— Georgia and Maryland. They did not provide that address should 
be concurrent with impeachment, but left the question open to construc¬ 
tion ; and both insisted that there should be no address unless voted by 
two-thirds of each House of the Legislature. Now', there is the way 
the American Constitution of the original thirteen States handled this 
subject. Not one provided that address should be a process for removal 
in case of misconduct, save the brief exception Pennsylvania made. 

Mr. Wadleigh. You say they require two-thirds? 


1882.] 


SENATE —No. 150. 


49 


Mr. Talbot. Yes : Georgia in ’98 and Maryland in ’76. 

I think I do the appropriate thing to pass from the constitutions of 
the original thirteen States to the existing constitutions of the present 
thiidy-eight States, and to quote these for the same purpose of show¬ 
ing what the American disposition and spirit upon this matter at pres¬ 
ent are. Of the existing constitutions, nine have no address what¬ 
ever,— Alabama, California, Illinois, Iowa, Mississippi, Missouri, 
Nebraska, New Jersey, and Vermont. They have no provision for 
address whatever. They rely on impeachment as the process for re¬ 
moval from office. In four other States — 
i Mr. Wadleigh. That applies to all officers in those States, not 
to the judicial officers alone? 

Mr. Talbot. No : I don’t think it does. I pass to the modifica- • 
tion in the next class. In four, the highest judicial officers are ex¬ 
empt from address. They are Colorado, Florida, Minnesota, and 
Pennsylvania. In four other States, judges are subject to address 
for reasonable cause, which shall not be sufficient ground of im¬ 
peachment,— Delaware, Michigan, South Carolina, and Texas. 
Into this class go two others ; but I should put them in generally, as 
they do not use the same language. They allow removal b}^ address 
“for mental or physical disability 7 ,’’—North Carolina and West 
Virginia. The latter uses a little different language, but there is no 
difference in substance : these two accordingly belong in that general 
class. Then came some debatable cases ; and I believe I have made 
it clear, Mr. Chairman, what I mean by debatable cases: but in 
these debatable cases address requires two-thirds of each branch. 
These are Arkansas, Connecticut, Georgia, Kentucky, and Louisi¬ 
ana. There are certain others of the debatable sort, which make 
the requirement a great deal stronger. They require two-thirds of 
those elected to each branch, notice to the officer complained of, and 
hearing. These are Kansas, Tennessee, and Wisconsin, three. 
New York is — 

Mr. Wadleigh. They all have the right of impeachment. 

Mr. Talbot. Yes, sir, they all have the right of impeachment. 
New York is contented if there is a majority of the senators. It 
requires two-thirds of the House, two-thirds of the members elected 
to the House, but a majority of the senators suffices ; and I have put 
that State into this same general class. Virginia is satisfied with a 
majority of those elected to each branch. Into this same general 
class I put my native State, Maine ; but, as the Committee of last 
year expressly referred to that, I shall treat it a little more fully 
later. Maine requires the advice of the Council, and the concurrence 
of both branches of the Legislature. So far, it is just like Massa¬ 
chusetts ; and then notice and hearing; and this kind are all debat- 


50 


HEARING — JOSEPH M. DAY. 


[Feb. 


able cases, i.e., they are open to the general argument now making 
whether they include impeachment or not. 

Mr. Wadleigh. They all have the right of impeachment. 

Mr. Talbot. Yes, sir, they all have the right of impeachment. 
Now I come to another class, where, b} T the terms of their constitu¬ 
tions, address is concurrent with impeachment; and those are Indi¬ 
ana, Maryland, Nevada, and Oregon. Indiana requires two-thirds of 
the members elected to each branch ; Maryland requires two-thirds of 
each House, notice, and hearing; Nevada requires two-thirds of the 
members elected to each branch, notice, and hearing ; Oregon requires 
two-thirds of the members elected to each House, and the cause to be 
stated, which I take it, is notice and hearing. 

Mr. Wadleigh. You have Nevada the same as Maryland? 

Mr. Talbot. Yes, that is it nearly. 

Mr. Chairman. What you mean b} T address concurrent with im¬ 
peachment is, that either way is allowed by the constitution. 

Mr. Wadleigh. They speak of the right of impeachment and right 
of address, both applicable to the same offence. 

Mr. Talbot. A judge may be removed in Maryland for incompe¬ 
tency ; and it goes on to specify as causes of removal what we should 
call impeachable offences, and ends b}^ providing, as the method of 
removal, impeachment or address. 

Mr. Cook. This includes all judicial officers? 

Mr. Talbot. No, I should sa} r not; because very many of the 
States make a distinction between higher and lower officers, the 
distinction which Mr. Wadleigh has called my attention to. The 
question that we are discussing is, how a provision of the constitution, 
which includes all judicial officers, shall be construed, higher as well 
as lower, and therefore, while the question might be pertinent if we 
were legislating, it is not pertinent as we are construing. This 
leaves three States — Rhode Island is sui generis; her judges are 
elected for two years, and hold at the pleasure of the General Assem¬ 
bly. This leaves nothing but Massachusetts and New Hampshire, 
w r hich are the debatable cases, as I told you. 

It is perfectly clear from this examination that the spirit of the 
American Constitution is decidedly against making address co-exten- 
sive with impeachment. The facts that I have stated conclude that 
entirely, as there are only a minority where the question is debatable; 
there is a very large and respectable number where the question is 
settled the way we contend that it ought to be settled ; there are only 
four where it is determined the other way, out of the thirty-eight 
States ; and that is a fact which I wish the Committee to hold in 
their mind when they approach the discussion of the Constitution of 
Massachusetts. 


1882.] 


SENATE — No. 150. 


51 


“All judicial officers duly commissioned, appointed, and sworn 
(is the provision of our organic law), shall hold their offices during 
good behavior, excepting such concerning whom there is different 
provision made in this Constitution ; provided, nevertheless, the Gov¬ 
ernor, with consent of the Council, may remove them on the address of 
both Houses of the Legislature.” The commission runs during good 
behavior. When good behavior ends, the commission is run out. The 
tenure is ended when good behavior ends: that is all the time that a 
judge can hold office. The question here is, whether address is pro¬ 
vided for the purpose of determining when good behavior has come to 
an end. In that there is going to be this difficulty, and it runs through 
all the debatable cases : it is admitted — it has been already admitted 
in this case — that removal bj r address was not adopted for the purpose 
of ascertaining that good behavior had come to an end. The counsel 
could not get through his preliminary day without admitting that, and 
it was admitted here most fully in the remarks made the other day. 
The counsel told you that the accused might be removed without cause, 
at the mere pleasure of the Legislature ; that it was a mere matter of 
discretion, a mere matter of legislative volition and will; and he is 
going to maintain it throughout the whole of this case. Now, remov¬ 
ing for misbehavior is not a matter of volition and will: it is a matter 
of trial and ascertainment. In other words, address was adopted ; 
and here I will illustrate my meaning in order to make it a little 
clearer: a man may be removed from his office for physical incom- 
petemy. That was the case of the first removal b\ r address in this 
Commonwealth. Justice Bradbury of the Supreme Court was stricken 
with palsy, and Justice Bradbury’s was the first case of removal by 
address. 

The Chairman. When was that? can } t ou tell? 

Mr. Talbot. I do not know whether that is stated, Mr. Chair¬ 
man ; but I have the idea — 

Mr. Wadleigh. I think that was referred to in the argument of 
last 3 'ear. 

The Chairman. Proceed, Mr. Talbot. 

Mr. Talbot. Now, then, we start with the proposition that it is 
admitted that address was adopted for the purpose of removing a 
judge who had not been guilty of bad behavior, for the purpose of re¬ 
moval during good behavior, removal in spite of good behavior! 
Now, put that with the fact that another proceeding has been adopted 
for the purpose of ascertaining when the good behavior of a judge had 
come to an end, — viz., impeachment by the House of Representatives, 
and trial by the Senate ; and what implication arises that carries ad¬ 
dress over to take up the function of impeachment? Is not one pur¬ 
pose of address enough to account for it ? 


52 


HEARING —JOSEPH M. DAY. 


[Feb. 


The next point to which I wish to call your attention is, that, in the 
Massachusetts Constitution, this provision for address applies only to 
judicial officers, and to those that hold their offices during good 
behavior. There is not another officer in the Commonwealth of 
Massachusetts that is liable to be removed from office by address, 
except a judicial officer; and it seems a little strange that a special 
and separate provision should be made for treating the case of mis¬ 
behavior of judicial officers. I can think of no reason for it. On 
the other hand, I can think of a very good reason for providing the 
process of address, as I construe it, for officers that hold their 
offices during good behavior ; for that may be spoken of, Mr. Chair¬ 
man, as during life ; and of course good behavior might extend into 
the period of physical age and infirmity, as was found to be the fact 
in Judge Bradbury’s case, and recently in the case of Justice Hunt 
of the Supreme Court of the United States, second circuit, stricken 
with palsy some two years ago, who declined to resign. 

Mr. Wadleigh. Judge Parrot’s (?) case in New Hampshire is 
an instance in illustration also. 

Mr. Talbot. Yes: and the United States, having no provision 
for address, had to enlarge this general provision for the compensa¬ 
tion of the supreme judges by passing a special law in Judge Hunt’s 
case within this session of Congress. There are two conditions 
required in case of a United States judge to entitle him to retire on 
pay, — seventy }’ears of age and ten of service : and Judge Hunt had 
not come within both of those conditions ; and by special Act of Con¬ 
gress he has been allowed a pension, and thereupon has resigned. And 
if, Mr. Chairman, you see fit to look up that case of Judge Bradbur} 7 , 
you will find that, when the matter came to the Governor, the Governor 
sat down and notified Judge Bradbury of the process of address ; and' 
Judge Bradbury answered and said that he had been waiting for the 
Commonwealth to make some provision for him during his old age, 
and held on on that account. Now, officers holding during good 
behavior are liable to hold when they are physically and mentally 
disabled; and, for the purpose of their proper removal, the process 
of address is necessary. But is there any other reason why you 
should treat judicial officers that are appointed during good behavior 
differently from what other officers are treated ? Is there any reason 
in the world why you should provide a special process for reaching a 
judge for misbehavior when you do not provide it for any other class 
of officers whatever? 

Now let me call attention to the report of the Committee of 
last year in review of my speech. I find in the report the remark 
is this: “In Maine, which derived its constitution in great part 
from Massachusetts” (Maine is the one specified), “and in several 


1882.] 


SENATE —No. 150. 


53 


of the other States, the provision for notice of the charges and 
hearing of the defence before removal implies that the address may 
be founded on misconduct.” I am going to admit, for the sake 
of argument, the truth of that implication presently; but I wish first 
to show how entirely incorrect it is. I hold in my hand a list of 
seventeen States that required, in order that a judge should be 
removed by address, two-thirds of the votes of each House, and 
notiee to the judge or officer, and a hearing, — those three requisites. 
Now, there are quite a number of these States that, in those very 
constitutions, say a judge may be removed by address only for a 
cause which is no ground of impeachment. I will read them : Ala¬ 
bama, two constitutions; Arkansas, one; Florida, one; Illinois, 
one ; Mississippi, one ; Missouri, one; South Carolina, one ; Texas, 
four. Ever}' one of those States confined address to what is not an 
impeachable offence, but at the same time required a vote of two- 
thirds of each House, notice to the officer, and a hearing. That 
disposes of the force of the argument drawn by the Committee. 

The implication cannot be drawn from the Constitution of Maine ; 
but I pass that, and admit, for the sake of argument, that it is 
correct; and now, Mr. Chairman, while I have shown you that it 
is not correct, is not the better statement of this matter this: that 
the absence of the requirements of notice and hearing implies that the 
cause cannot be an impeachable offence? Is not that a more logi¬ 
cal conclusion, and a better statement? The Committee say that 
notice and hearing implies that it covers impeachable offences. If 
so, what does the absence of notice and hearing imply? Certainly 
I have the'right to say that it implies that it does not reach to an 
impeachable offence. Now, admit the position of the Committee to 
be correct: that Maine and Massachusetts are two kindred States, 
and that you can argue better from one of these to the other, than be¬ 
tween other States in the Union. How does Maine’s constitution affect 
its neighbor, which, in the very year when Maine adopted her constitu¬ 
tion, and provided that the person against whom processes of address 
are proceeding shall have both notice and hearing, refused to make 
an}' such provision? Massachusetts positively refused by vote to 
make address conditioned on notice and hearing. She would not 
even have the case stated on the journals of the House ; and that is 
the very proposition that the convention of 1820 submitted to the 
people of this State, and they would not adopt it. Now, if the Com¬ 
mittee are right, — give them every force of argument as to Maine, — 
how does it stand as to Massachusetts? It stands conclusively 
that Massachusetts meant that it should not be an impeachable 
offence ; for she does not require even the case to be stated on the 
journals of the House. 


54 


HEARING — JOSEPH M. DAY. 


[Feb. 


But here I am not left to argument alone. When this matter was 
before the Constitutional Convention of 1820, it was fully argued ; 
and the opinions of the speakers who gave their opinion upon the 
subject now in hand were unanimous. And here, Mr. Chairman, 
because it has been treated in such a way before the Committee, I 
must beg the liberty to repeat almost verbatim something in my 
argument of last 3 'ear. Ten speakers spoke on this subject in the 
convention, and gave their opinion ; and those ten gave their opinion 
that impeachment and address were not co-extensive remedies. 

“Friday, Dec. 29.—The House went into committee of the whole on the 
reports of the Select Committee on the Judiciary Power.” 

“ The committee went into consideration of the first resolution of the Select 
Committee, which proposes to alter the Constitution, so that judicial officers 
shall he removable by the Governor and Council upon the address of two-thirds 
(instead of a majority) of each branch of the Legislature.” 

Now, that is the proposition to alter this provision of the Constitu¬ 
tion, so that it shall require two-thirds instead of a majority. That 
is, to throw safeguards around the exercise of the power of address, 
not to limit the extent of the subjects to which it will apply, but to 
restrict the method of exercising. 

“Mr. Pickman of Salem. He said the provision in the Constitution respect¬ 
ing the removal of judicial officers had been complained of as rendering the 
judges too dependent upon the Legislature. It was proper to have a provision 
of a similar nature to meet cases that were not the'proper subject of impeachment 
[there is no mistake as to the construction of that sentence], such as incapacity 
from natural infirmities; and he thought that requiring the consent of two- 
thirds of each branch of the Legislature would secure the public in cases of 
manifest incapacity of this kind, and at the same time give greater independence 
to the judges.” 

“Mr. Austin of Boston (J. T., Esq.) moved to amend the resolution by 
striking out all the words after ‘ Resolved ,’ and inserting that it was inexpedient 
to make any alteration or amendment in that part of the Constitution that 
relates to the judiciary.” 

I read that note because it bears on this matter, and to state what 
the issue was at that time. 

“ Mr. Hubbard of Boston. The tenure of office of judges was said to be 
during good behavior. Was this the case when the Legislature might deprive 
them of their office, although they had committed no crime ? Sufficient provis¬ 
ion was made in the case of misconduct in the power of impeachment.” 

He did not understand address to be co-existent with impeachment. 

“Mr. Savage of Boston. He hoped we should [have] better [provisions 
than in the Constitution of the United States]; that we should have the advan¬ 
tages of both modes of removal from office, — by impeachment and upon an 
address of the Legislature, — so as to meet the moral disqualifications and the 
natural disqualifications for office. It ought not to be in the power of the 
Legislature to address for any offence. The accused ought to be heard in his 
defence.” 


1882.] 


SENATE —No. 150. 


55 


‘‘Mr. Prescott of Boston. They hold their offices as long as they behave 
well, and no longer. They are impeached when guilty of misconduct. It is 
the duty of the House of Representatives, constituting the Grand Inquest of 
the Commonwealth, to make inquiry; for the Senate to try, and, if guilty, to 
remove them from office. There may be other cases in which they ought to be 
removed, — when not guilty of misconduct in office, but for infirmity. Provision 
is made for these cases, that the two branches of the Legislature, concurring 
with the Governor and Council, may remove judges from office. The mode of 
removal by address was introduced into the British Government for the purpose 
of restraining the power of the crown, but into ours for another purpose, — to 
provide for a case which could not properly be reached by impeachment.” 

“Mr. D. Davis of Boston. (I have found it to be Daniel Davis, who for 
twenty-seven years, at least, was the solicitor-general of the Commonwealth.) 
He said the Constitution contemplates removal of judges from office for two 
causes only, —for crime, by impeachment on the Grand Inquest by the repre¬ 
sentatives, and for being disqualified to perform the duties of the office by the 
visitation of God. The power of removal by address, which was intended to 
apply only to cases of disqualification by the visitation of God, in fact extended 
further, and was liable to be abused.” 

“ Mr. Cummings of Salem. He considered that part of the Constitution as 
perfect. In this State they cannot be removed on address of the Legislature, 
but with the consent of the Council. Was not this a sufficient guard? Another 
part of the Constitution protects them when accused of crimes. This provision 
is not intended to embrace cases of crime: it is only for cases when they become 
incompetent to discharge their duties. May not the people ” — 

“ Mr. Holmes of Rochester. When a judicial officer has been guilty of 
mal-administration, he will be removed by impeachment. When it was neces¬ 
sary to remove a judge for any other cause, he thought that two-tliirds of both 
branches would always concur in the removal. He was therefore in favor of 
the report.” 

Later is found the vote upon striking out the recommendation of 
the Committee to require two-thirds vote of each branch. 

“ The question was then taken on striking out, and decided in the affirma¬ 
tive, — 210 to 105.” 

That is, the convention refused to adopt the two-thirds rule ; and 
the}~ refused to adopt it, it being distinctly stated in the debate that 
the power so to be exercised by the majority did not extend to im¬ 
peachable offences. Otherwise those moderate men would have had 
an argument for requiring a two-thirds vote, which now they did not 
have, and could not use ; and yet most of those speakers who spoke of 
this as restricted were in favor of a two-thirds vote even in cases 
of infirmity. 

“Saturday, Dec. 30. — The question was stated on the adoption of the 
other part of Mr. Austin’s motion; viz., to insert in the place of tlie resolution 
struck out a resolution that it is not expedient to make any further amend¬ 
ment in the part of the Constitution relating to the judiciary.” 

Now, the jurists in the convention had been beaten, beaten in their 
efforts to have address depend upon a two-thirds vote, address for 


56 


HEARING —JOSEPH M. DAY. 


[Feb. 


non-impeachable offences. Here Mr. Webster appears in the discus¬ 
sion, and the lawyers set their battle in arraj r again with a slightly 
changed front: — 

“ Mr. Webster moved to amend the amendment in conformity with the reso¬ 
lution offered by Mr. Prince, by striking out after the word ‘ Resolved ,’ and 
inserting ‘ that it is expedient so to amend the Constitution as to provide that 
no address for the removal of any judicial officer shall pass either House of 
the General Court until the causes of removal are first stated and entered on the 
journal of the House in which it originated, and a copy thereof served on the 
person in office, that he may be admitted to a hearing in his defence.” 

That is the provision wdiich North Carolina has, even in case of 
physical disability; and those men were talking about cases of physi¬ 
cal disability, and they wanted the cause of removal stated, and 
notice and hearing given. 

o o 

“ The amendment was agreed to by a large majority; and the resolution, as 
amended, was agreed to.” 

Mr. Austin of Boston speaks. He was on the other side. He 
wanted to keep it as it w T as. 

“By the Constitution, judges, like all other officers, are subjected to punish¬ 
ment for great crimes by impeachment. Nobody objects to this provision. The 
House of Representatives is the Grand Inquest: they are tried by the Senate, 
and have the right of being heard. But the Constitution admits that there may 
be cases in which judges may be removed without supposing a crime.” 

[Mr. Burdett explained to the Committee that Mr. Thompson had 
found, very unexpectedly, that he could attend the hearing this week, 
contrary to Mr. Burdett’s supposition, as expressed at the last sitting 
of the Committee.] Adjourned to this afternoon at 3.30 o’clock. 


1882.] 


SENATE —No. 150. 


57 


THIRD HEARING. 

Boston, Friday, Feb. 24. 

The bearing began at 3.30 p.m., Senator Jennings, Chairman, 
presiding. 

Mr. Talbot. I had nearly finished reading extracts from the 
speakers in the Constitutional Convention, when we adjourned ; and 
the point where I stopped, b} r accident, as it w r ere this year, is the 
point precisely where I purposely stopped for emphasis last year. I 
have but two more extracts to read, but those two happen to be what 
was said by Judge Story and the late Chief Justice Shaw. Judge 
Story said, — 

“ The Governor and Council might remove them on the address of a majority 
of the Legislature, not for crimes and misdemeanors, for that was provided for 
in another manner.” 

Nothing could be more distinct than that language of Judge Story. 

Judge Shaw said, — 

“What is meant by good behavior ? The faithful discharge of the duties of 
the office. If not faithful, they were liable to trial by impeachment. But cases 
might arise when it might be desirable to remove a judge from office for other 
causes. He may become incapable of performing the duties of the office with¬ 
out fault. He may lose his reason, or be otherwise incapacitated. It is the 
theory of our government that no man shall receive the emoluments of office 
without performing the services, though he is incapacitated by the providence 
of God. It is necessary, therefore, that there should be provision in this case. 
But in cases where it applies, the reason will be so manifest as to command a 
general assent. It must be known, so as to admit no doubt, if a judge has lost 
his reason, or become incapable of performing his duties. As it does not imply 
misbehavior, if the reason cannot be made manifest so as to command the 
assent of a great majority of the Legislature, of two-thirds at least, there can 
be no necessity for the removal.” 

I said, Mr. Chairman, that I read this out of place; and you will 
see that what Judge Shaw there says is not addressed to the point 
then before the convention, which was Mr. Webster’s motion to state 
the cause ; but was addressed to the preceding motion, which I treated 
this forenoon, to require a two-thirds vote. 

Now, I cannot allow myself to be misunderstood with regard to 
these speakers ; and the Committee will bear with me, even if I repeat 
myself. The direct proposition before the Constitutional Convention 
of 1820 had nothing to do directly with the question which I am dis- 


58 


HEARING —JOSEPH M. DAY. 


[Feb. 


cussing here. It was not a question of enlarging the scope of address, 
to make it apply to subjects that it did not apply to then, nor to 
restrict it. It did not touch that matter at all: that was not directly 
in issue. The question was, whether additional restriction should be 
thrown around its exercise with reference to whatever subjects it then 
included. The direct question, let me repeat it, was not what sub¬ 
jects does address cover, — not to enlarge or restrict its scope as to 
subjects ; but it was to provide further restrictions in its exercise, the 
scope of its subjects being an admitted, undisputed fact. 

When I was replied to last year, after reading these extracts, you 
will find that the counsel on the other side attempted to belittle the 
force of these extracts by speaking of the expressions as caused by 
the “ ardor of debate.” 

Mr. Wadleigh. I am not going to assert any such thing, so that 
it is not necessary to refer to it. 

Mr. Talbot. I cannot refrain from making myself entirely clear 
upon this point. Now, then, those ten speakers, whose extracts I 
have given upon the question before the convention, were divided, 
eight to two. Eight of them wanted additional safeguards thrown 
about the manner in which address should be exercised ; two of them 
wanted the Constitution to stand just as it was. Now, you will see 
that the best argument that any one of those eight could have made, 
would have been to say, “Address is unlimited in its scope.” That 
is the argument that they wanted. If they talked about its being 
dangerous, the larger its scope, the more dangerous it was. There is 
where the “ ardor of argument” would have led the eight. And yet 
the eight, including Judge Story and Judge Shaw, all of them spoke 
of it as restricted in its scope. They said it is confined to cases not 
impeachable ; and there was no man in that convention to contradict 
them. With these declarations before the people of Massachusetts, 
they voted upon this matter; and, having this before them as con¬ 
struction, the} 7 Refused to place a single safeguard about the manner 
of its exercise. Isn’t it perfectly clear that the people of Massachu¬ 
setts at that time understood and voted that address was limited in 
its scope, just as we contend here? If a single man could have stood 
up there, and said, “Address is unlimited in its scope,” it would have 
helped carry that amendment through. It failed : the people would 
not vote it, at the same time that the people of the State of Maine 
had voted that there should be notice and hearing ; and the Committee 
quote that as showing that the Constitution of the State of Maine is 
unlimited in the scope of its subjects. There is contemporary con¬ 
struction; there is the ratification of the views of Judge Story and 
Judge Shaw and the jurists of 1820 by the people of Massachusetts. 

But that is not all. We have stronger contemporary construction ; 


1882.] 


SENATE —No. 150. 


59 


we have actual practice by the Commonwealth itself. That conven¬ 
tion adjourned as late as Jan. 9, 1821. The Legislature of 1821, of 
course, was in session at that time, — unless there has been a change 
in the Constitution as to the time of its meeting. The first Wednes- 
day of 1821 must have occurred before the 9tli of January. Now, 
we can follow the last speaker, whose remarks I have quoted : we 
know something about him after that convention adjourned. Where 
was he? He went into the House of Representatives, — Lemuel 
Shaw was a member of the House of Representatives of 1821 ; and, 
eight days after the Constitutional Convention adjourned, there came 
into that House complaints — against whom? Against a fellow-officer 
of the one complained of here, — not against the Chief Justice of 
the Supreme Court, nor any of his associate judges, but against a 
lower judge, against a judge of probate, against James Prescott, 
judge of probate for the county of Middlesex. Three days after¬ 
wards, on the 20th of January, a formal petition came in, charging 
him with mal-administration in office. Judge Shaw very early made 
up his mind in that case against the officer. Did he move to proceed 
by address? Never a whit: he took not one step for address; but 
he proceeded to impeach, and the House of Representatives of 1821 
proceeded to impeach James Prescott, judge of probate for Middle¬ 
sex County. Now I ask, if address was unlimited in its scope, if it 
applied to judicial officers charged with misconduct, why did the 
Legislature of Massachusetts then proceed by impeachment? We 
have been two years asking the accusers of the judge of probate of 
Barnstable County to proceed by impeachment, and we have not 
succeeded. So long as they can proceed by address, the}’ choose to 
do so; and I will venture to say, if the accusers of Judge Prescott 
had thought they could proceed by address, they w T ould have done so. 
But the} 7 did not. The Commonwealth at that time did not think of 
address as applied to judicial officers accused of misconduct, and 
the Commonwealth proceeded by impeachment. 

The Committee, in passing upon my argument upon this subject, 
said that the members of the Constitutional Convention understood 
address to be unlimited in its scope, because they spoke of it as a 
dangerous power. I need not go over it again to show you how far 
that remark is from correct. I have shown you that they spoke of it 
as a limited power, limited in its scope. Why did they deem it dan¬ 
gerous? They deemed it dangerous because there was no safeguard 
around about the method of its exercise. They were right. Judge 
Shaw and those men, in speaking of it, understood that it applied only 
to cases of physical incapacity and similar cases ; and then he said it 
was dangerous, “for,” he said, “ in that case you ought to have a 
two-thirds vote. ” And Mr. Webster said, “ You ought to have the 


60 HEARING —JOSEPH M. DAY. [Feb. 

causes stated on the record ; ” and that corresponds, as I am going 
to show, with the American spirit upon this subject. 

And now permit me to read one or two extracts which are mere 
samples. I take the first on my list of State constitutions, “ Ala¬ 
bama, 1819,” and see how it goes on : — 

. . . “ During good behavior [those are the first three words], and for wilful 
neglect of duty or other reasonable cause, which shall not be sufficient ground 
for impeachment, the Governor shall remove any of them on the address of 
two-tliirds of each House of the General Assembly, provided, however, that 
the cause or causes for which such removal shall be required shall be set down 
in such address, and entered on the journals of each House; and, provided 
further, that the cause or causes shall be notified to the judge so intended to be 
removed; and he shall be admitted to a hearing in his own defence before any 
vote for such address shall pass; and in all such cases the vote shall be taken 
by yeas and nays, and entered on the journal of each House respectively.” 

That is the kind of a provision that Judge Shaw, and the other 
members of the Constitutional Convention who acted with him, 
wanted adopted by the people of Massachusetts. That is a mere 
specimen. Michigan is veiy much like it; but I will pass on to North 
Carolina. 

North Carolina, 1838. “ Any judge of the Supreme Court or of the Superior 

Courts may be removed from office for mental or physical inability upon a con¬ 
current resolution of two-thirds of both branches of the General Assembly. 
The judge against whom the Legislature may be about to proceed shall receive 
notice thereof, accompanied by a copy of the causes alleged for his removal, at 
least twenty days before the day on which either branch of the General 
Assembly shall act thereon.” 

I take it, Mr. Chairman, without any doubt that that notice is to 
the purpose of allowing a hearing; and allow me to say that almost 
exactly the phraseology used by Alabama, those very words, run as 
just read through quite a number of constitutions. 

I will read now one more extract; and that is, “ West Virginia, 
1872,” providing at the same time for impeachment, — almost all 
these States provide for impeachment. 

“ Judges may be removed from office by the concurrent vote of both Houses 
of the Legislature, when, from age, disease, or mental or bodily infirmity, they 
are incapable of discharging the duties of their office; but the cause of removal 
shall be entered on the journals of each House. The judge against whom the 
Legislature may be about to proceed shall receive notice thereof, accompanied 
with a copy of the causes alleged for his removal, at least twenty days before 
the day on which either House of the General Assembly shall act thereon.” 

That illustrates what the proposed amendments of our Constitution 
were aimed at. 

The Chairman. Doesn’t that simply go to show, Mr. Talbot, that 
that isn’t the law of Massachusetts? 


1882.] 


SENATE—No. 150. 


61 


Mr. Talbot. I do not contend that those provisions show that it 
is the law of Massachusetts. I have made no such proposition. 

The Chairman. What is your object in putting it in? 

Mr. Talbot. M} r object in putting it in is to show the American 
disposition, even when they confine address just as I insist it ought 
to be confined, — that they throw restrictions around it that we have 
not in our Constitution of Massachusetts. 

The Chairman. Do I understand that the point that } T ou are en¬ 
deavoring to make before the Committee is, that under the Massa¬ 
chusetts Constitution — for that is what we must act under in this 
case — we should not consider these specifications as grounds for 
removal by address because they are grounds for impeachment ? 

Mr. Talbot. Yes, Mr. Chairman. 

The Chairman. Well, it doesn’t help the Committee any to say 
that other States have provided that grounds which are reasons for 
impeachment shall not be grounds for removal by address, if such 
is not our law. 

Mr. Talbot. Certainly not: that is not my aim at all. The 
Chairman is entirely right in that: the language must be construed 
by itself. 

The Chairman. Then, I do not see, Mr. Talbot, how your argu¬ 
ment in this respect helps us in this case. 

Mr. Wadleigh. I think, Mr. Chairman, that I can show the Com- 
mitteee that my brother is laboring under a great misapprehension. 

The Chairman. I merely wanted to call your attention to it, Mr. 
Talbot, as I supposed the rest of the Committee might have the same 
thoughts suggest themselves to their minds as did to my own, so that 
you might answer the objection that presented itself to the Committee 
while you were in the course of your argument. 

Mr. Talbot. I am \ery much obliged to the Chairman. 

Mr. Wadleigh. I understand—at least, I suppose — that Mr. 
Talbot must be attempting to show, by quoting the constitutions of 
other States, that the spirit of American law is in favor of his inter¬ 
pretation of our Constitution. 

Mr. Talbot. But I am not speaking, — if the Chairman will 
allow me, — I am not speaking just now to the main question. I am 
now speaking to a particular point under the main question, and my 
point is this : the right of removal by address, in respect to the 
manner of its exercise, is the least restricted in Massachusetts of 
any State in the Union. Now, the want of restriction there is a rea¬ 
son for implying a restriction in the scope of its subject; and I 
prove that by showing that other States, where they have restricted 
its scope just as much as I am contending it ought to be restricted 
here, at the same time have thrown safeguards around its exercise 


62 


HEARING —JOSEPH M. DAY. 


[Feb. 


that we have not here,—Mr. Wadleigh does not come far from 
understanding me, —showing the spirit of the American Constitution 
upon this subject. The more they restrict it, as to the manner of its 
exercise, the more safely you can infer a wide scope to the subject: 
the less restricted is the manner of its exercise, the more you are 
able by inference to restrict the scope of its subject. That is what I 
am going to say now. But that was not the whole of the precise 
point to which I have introduced these extracts. I was speaking of 
the intent and purpose of the members of the Constitutional Conven¬ 
tion who endeavored to get the Constitution amended ; and I wmnted 
to show, to illustrate full}', what they were aiming at; and I could 
not illustrate that any better than by showing the existing constitu¬ 
tions of some other States. Now I come back to it. 

Judge Shaw starts with the proposition, address applies only (we 
will say) to cases of physical infirmity. That is exact enough for 
this purpose, — only to cases of physical infirmity; and he then 
insists that even in those cases we should have additional safeguards, 
that is, either a two-thirds vote or the cause stated on the journal. 
That is Judge Shaw’s position. 

Now I pass back again to the State of Maine, following the Com¬ 
mittee, who say that we can argue from Maine to Massachusetts, and 
from Massachusetts to Maine, as we cannot anywhere else. Maine 
requires the cause to be stated, and Maine requires a hearing. So 
do seventeen other States require a hearing, — notice and hearing. 
What does hearing mean ? I understand that hearing means a hear¬ 
ing by the body that decides, and not by committee. And I have 
the construction of the State of Maine upon that point. I had some 
recollection of this, but I did not choose to leave it to recollection; 
and a friend has found in the works of Rufus Choate his argument 
for Judge Davis when the question of his removal by address was 
before the Legislature of Maine. Now notice : Mr. Choate appeared, 
not as we are appearing here, in committee, but he appeared before 
a convention of both Houses sitting in the Senate Chamber, sitting 
as a whole to hear and try that case ; and although that w'as a parti¬ 
san case, and a partisan removal (and in saying that I do not mean 
to say whether it was right or wrong, because the right may be with 
one party or another), yet, partisan as they were, they gave Judge 
Davis, under that Constitution, a hearing before the bodies that were 
to try the case; and Mr. Choate commences his address, “Mr. 
President.” He addresses the president of the Senate. That is 
what is secured by impeachment: a hearing, and a hearing before 
the body that is to try and determine. 

You ask me, What is the difference? We know what the difference 
is ; we know what the difference is to the judge of probate for Barn- 


1882.] 


SENATE —No. 150. 


63 


stable County, who is now under question. We can estimate the 
value to him of a hearing exactly and full}". Eleven members of the 
last Legislature sat and heard his case, and every one of them pro¬ 
nounced him not guilty. They put their names to the report to that 
effect. And then, again, when the jury w 7 as polled in the Senate and 
in the House of Representatives, they repeated their verdict, and they 
said, “ He shall not be removed from office.” That is the value of a 
hearing to him : it is the difference between condemnation and acquit¬ 
tal ; it is the difference between removal with disgrace and retention 
free from disgrace. Here no provision for a hearing is applied in this 
case ; nothing but a hearing by committee has ever been allowed to 
him. 

I have said, that, prior to the Revolution in England, I could find 
no case of a removal of a judge by impeachment. I wish to say now, 
that, if the prayer of these petitioners is granted, the future histoiy 
of Massachusetts will run on, just as I have found the history of 
England to be, and there will be no such thing as impeachment of 
judicial officers in Massachusetts. The process of address is so 
much easier, that, once have it established, it becomes the only pro¬ 
cess that is to be applied to those cases ; and the function of impeach¬ 
ment, which is provided by the Constitution, ceases to be used, and 
becomes obsolete for all judicial officers. I beg the Committee to pause 
before they proceed practically to make such an alteration in the Con¬ 
stitution as that, by construction, or before the} 7 take one step in that 
direction. Why were these safeguards, which were thrown around 
impeachment, adopted? Were they not adopted for the purpose of 
protecting the accused against the indiscretion and the partisan zeal 
of the Legislature? Does not the Constitution assume that there 
must be some safeguard even between the Legislature and these 
officers? One of the speakers in the Constitutional Convention says 
the Constitution protects them when accused of crime. How does 
it protect them if the provision which provides for the trial of those 
that are accused of crime has no imperative power over the Legisla¬ 
ture? If the Legislature can lay aside those provisions of the Con¬ 
stitution whenever they please, what protection is there left under 
the impeachment clause ? I can see none. 

Something is said about a precedent. I have only to state certain 
facts to the professional members of the Committee who are listening 
to me, to convince them that there is no precedent in Massachusetts 
at this time. A precedent is only made by a contested case, and 
there has no contested case ever occurred in Massachusetts. The 
strongest case against the position of the remonstrants is the case 
of the Hancock County judges, who were removed by address for 
misbehavior in office, having been convicted of taking unlawful fees. 


64 


HEARING —JOSEPH M. DAY. 


[Feb. 


They did not appear, they made no hearing, they made no protest, 
they made no defence; and the Committee see at once that they had 
no case. If they were not to be removed by address, they were to 
be impeached. Practically it made no difference to them. Address 
was the easier way, and they did not appear to oppose. 

Now, how can we have an authoritative decision where there is no 
contest? How can we get it, Mr. Chairman, in the judicial courts? 
Are the reported cases, which we follow and which we consult and 
which we study, any thing but contested cases, — cases carried to 
the court of the last resort by vigorous, persistent contest, and there 
decided? But there is no such case here. I come down to Judge 
Loring’s case, and I want to call your attention to the way that was 
put. A single word disposes of that case. The position of Judge 
Loring and his friends was the very opposite of the position which 
we are taking. It was 7iot the same position, — I must make that 
clear: it was the opposite position. The position which Judge 
Loring took, and which his friends took, was this: “I have been 
guilty of no impeachable offence, and therefore you cannot remove 
me.” We do not say what he said, “ I have been charged with no 
impeachable offence ; ” we say we have been charged with impeacha¬ 
ble offences, and you cannot try them: so that the two cases are 
directly opposite, and that case cannot be quoted. 

The Chairman. You have referred, Mr. Talbot, to these Hancock 
County judges. As I understood you, they were removed by address 
for taking illegal fees. 

Mr. Talbot. Yes, sir. 

Mr. Wadleigh. My brother Talbot says, that, inasmuch as there 
was no contest there, there was no question of law settled. 

Mr. Talbot. I am speaking now to the point that there is no 
authoritative case against me. 

The Chairman. The only question I wished to call to your atten¬ 
tion was, whether you did distinctly admit that they were removed by 
address for what was an impeachable offence. 

Mr. Talbot. No doubt about that, Mr. Chairman : the}’ had been 
convicted in a court of common law down in the State of Maine. 

Mr. Wadleigh. I do not stand on these questions : I do not care 
any thing about them. 

Mr. Talbot. I will only state one other incident in that connec¬ 
tion. Their cases were brought to the knowledge of the House of 
Representatives by a letter from Daniel Davis, then solicitor-general 
of Massachusetts ; and Daniel Davis, seventeen vears afterwards, 
was in the Constitutional Convention of 1820, and there declared 
that address did not extend to impeachable offences in substance. 
Their cases would have stood entirely different if any objection had 


1882.] 


SENATE —No. 150. 


65 


been made, or if they had made any appearance, and demanded a 
trial. They did not do either. And you will see, Mr. Chairman, 
that, when it is settled that a judge is to be removed, address is the 
easier method for him ; and there was no doubt about their cases. As 
I said before, the}’ had no case. 

The Chairman. Taking your illustration from the courts, Mr. 
Talbot, to which }’ou have referred, suppose I go into court with a 
w r rit or with a bill in equity on which it clearly appears that the court 
has no jurisdiction, the fact that there is no defence offered does not give 
me an execution on my writ, or an order on my bill in equity, does it? 

Mr. Talbot. It might, unless the attention of the judge were 
called to it in some wa} T . 

Mr. Wadleigh. I think there is force in that, that, in a case 
where there is no appearance, it would impair the value of the prece¬ 
dent. That I do not deny. 

Mr. Talbot. That is all. I am speaking simply to the point that 
there is no precedent, no deliberate adjudication after contest of the 
question which I am arguing. We have appeared here, we have gone 
even further than we did last }’ear, we have put in our protest at the 
beginning of the proceedings, and asked your attention distinctly to 
this question. 

Now, it would not be proper for me to estimate the effect of my 
argument as successful or unsuccessful. That, gentlemen of the 
Committee, is with you. But I do think, and I hope the Com¬ 
mittee will agree with me, that what I have been arguing is an 
“ important question of law.” The question whether there are one 
or two methods of removing the judicial officers of this Common¬ 
wealth from office, upon charges of misconduct and mal-administration 
in office, whether they are under the protection which the Constitution 
throws around all other officers accused of crime, when it guarantees 
to them a trial by impeachment, or whether they are at the absolute 
discretion of the Legislature, as expressed by my brother Wadleigh on 
Tuesday, it strikes me, is an important question of law, — important 
to be finally and conclusively determined. And I think that the oc¬ 
casion of the contemplated removal of a judge of probate and insol¬ 
vency for one of the counties of this State is a “ solemn occasion.” 

I think, then, that we have here, Mr. Chairman, before us, an 
important question of law on a solemn occasion ; and the Constitu¬ 
tion makes it the right of the Legislature, upon important questions 
of law and solemn occasions, to take the opinion of the judges of 
the Supreme Court. I must borrow the language of Mr. Webster, 
and urge upon you that here “ the duty is commensurate icith the 
right," and that you ought, before proceeding any further in this 
case, to take the opinion of the justices of the Supreme Court upon 


66 


HEARING —JOSEPH M. DAY. 


[Feb. 


this constitutional question, that the judicial officers and the people 
of the Commonwealth may know what is the Constitution in this 
respect. Is there any better service that you can render the Com¬ 
monwealth during this your legislative year, than to have this 
important question finally and judicially determined? 

With these remarks I leave this question. 

ARGUMENT OF MR. B. WADLEIGH. 

Mr. Chairman, — I am exceedingly anxious to finish what I have 
to say upon this case this afternoon ; and, having this purpose in 
view, what I shall say will be of course brief and somewhat discon¬ 
nected. 

It seems to me that my brother Talbot has totally misapprehended 
the position which we take here in reference to this question of law, 
which he has argued with so much ability and force, and to which I 
propose to first address myself in speaking to you. 

The right of removal by address rests upon a certain clause of 
what is termed the Act of Settlement, passed about 1690, in Eng¬ 
land, by which the crown of England was settled on the house of 
Hanover. It was not in the reign of George I., but it was the act 
by which the crown was settled upon George I. and his descendants. 
It was in the twelfth or thirteenth year of the reign of William III. 
Before that time removals had been effected by impeachment; and 
it is true, as my brother Talbot has stated in the case which he 
referred to, of Baron Verulam (Francis Bacon), that, after the defend¬ 
ant had been found guilty in the proceedings in impeachment, the 
king was asked to remove him because he was the king’s servant, 
and the finding him guilty did not remove him from the office. But 
the judges of the courts held their commissions at the king’s pleasure ; 
and it was frequently the case, that, for decisions which the}’ gave 
resisting the wrongful claims of the crown, the}’ were removed by the 
king. When Parliament took upon itself the settlement of the suc¬ 
cession, they endeavored to find a remedy for that; and they found 
a remedy which proved effectual. It was provided in that Act of 
Settlement as follows (I read this from Hallam’s “Constitutional 
History of England ; ” and you all know, that upon all questions of 
constitutional law and constitutional authority, so far as England is 
concerned, there can be no higher authority) : — 

“ That, after the said limitation shall take effect as aforesaid, judges’ commis¬ 
sions be made quamdiu se bene yesserint, and their salaries ascertained and 
established; but, upon the address of both Houses of Parliament, it may be law¬ 
ful to remove them.” 

Now, under that article in the Act of Settlement, judges have been 


1882.] 


SENATE —No. 150. 


67 


removable at the pleasure of Parliament with the concurrence of the 
king, without stating in the address for their removal any reasons 
whatever. The record does not show the cause for which they were 
removed : it shows simply that the} 7 were removed at the pleasure 
of Parliament acting for the public good. If the record showed that 
the} 7 were removed for official misconduct, then, upon the face of that 
record, Parliament would have no right to remove them for that cause, 
and the} 7 must be removed by impeachment; but, where no cause is 
stated in the address which removes them, they are removed, in the 
eye of the law, for no cause except the will of Parliament. And that 
is the distinction that my brother Talbot failed to notice. 

Mr. Talbot. If you will allow me one minute, I wish you would 
give me the references to these cases of actual removal by address. 

Mr. Wadleigh. They are numerous, I think. 

Mr. Talbot. Give me the references to them. 

Mr. Wadleigh. I supposed it was a historical fact. Now, what 
Hallam says in regard to this law is this, and it is found in the 
fifteenth chapter of Hallam’s “ Constitutional History of Eng- 
land : * * — 

“No judge can be dismissed from office except inconsequence of a convic¬ 
tion for some offence, or tlie address of both Houses of Parliament, which is 
tantamount to an Act of the Legislature.” 

That is, the right of address rests upon precisely the same reason 
that any Act of the Legislature rests on. It is the duty of Parlia¬ 
ment, it is the duty of every Legislature, to pass such Acts as may be 
for the public good. That is presumed to be the reason of their 
passage for the purpose of benefiting the people. Now, when 
Parliament passed an address, without naming in it the cause for 
which the address w r as passed, — it made no difference what the real 
reason was, — in the eye of the law that was an address passed 
simply by the will and at the pleasure of Parliament, no matter 
what the cause was ; and, being such, no impeachment was neces¬ 
sary. Hallam says, in a note, that — 

“ jt was originally resolved that they should be removable on the address of 
either House, which was changed afterwards to both Houses.” 

That article in the Act of Settlement took from the English 
crown the right of removing the judges. It rendered them independ¬ 
ent of the king, and subjected them to the power of Parliament; 
and Parliament, acting with the king, could remove them at its 
pleasure. 

When Massachusetts came to adopt her Constitution, she adopted 
that provision of the English law. It is in Massachusetts the same 
as it was in England, and the provision in the Constitution of Mas- 


68 


HEARING —JOSEPH M. DAY. 


[Feb. 


sachusetts is the same to-day' as it was in the first constitution 
that was established. In 1820 an effort was made by the lawyers in 
the Constitutional Convention to change the Constitution of Massa¬ 
chusetts. 1 will say here that that effort did not succeed. They 
proposed an amendment to the people, which you will find upon p. 
619 of the proceedings of that convention : — 

“ Justices of the peace may be removed from office, like other judicial officers, 
by the Governor, with the consent of the Council, upon the address of a major¬ 
ity of the members present of each House of the Legislature; but no address 
for the removal of any judicial officer shall pass either House of the Legislature 
until the causes of such removal are first stated and entered on the journal of 
the House in which it shall originate, and a copy thereof served on the person 
in office, so that he may be admitted to a hearing in his defence before each of 
said Houses.” 

That amendment did not prevail. It was voted down by the peo¬ 
ple ; and, although in 1853 there was another Constitutional Conven¬ 
tion, this provision of the Constitution was left unchanged, and in the 
amendments submitted to the people no amendment was proposed to 
this portion of the old Constitution. 

Judge Story, in his remarks upon p. 524 of the proceedings of 
that convention, states the rule precisely as I have stated it. My 
brother quoted only a part of what Judge Story- said. I am going to 
quote the whole : — 

“ It was said that the judges should hold their offices during good behavior, 
— the terms were so in the Constitution; but, while another clause of the Con¬ 
stitution remained, the fact was not so. The Governor and Council might 
remove them, on the address of a majority of the Legislature, not for crimes 
and misdemeanors, — for that was provided for in another manner, — but for 
no cause whatever: no reason was to be given.” 

That is, if they put into the address that they were removed for 
crimes and misdemeanors, they could not pass an address for the 
removal: they had no right to. But supposing they left that out, so 
that the record of the Legislature showed that they were removed 
simply at the will and at the pleasure of the Legislature, then they 7 
could remove them by 7 address, no matter what the real cause (which 
was not on record) was. That is, it is by 7 the record that y'ou learn 
what the cause is, and by T that alone. He says (I repeat), — 

“ The Governor and Council might remove them on the address of a majority 
of the Legislature, not for crimes and misdemeanors, — for that was provided for 
in another manner, — but for no cause whatever: no reason was to be given. A 
powerful individual, who has a cause in court which he is unwilling to trust to 
an upright judge, may, if he has influence enough to excite a momentary pre¬ 
judice, and command a majority of the Legislature, obtain his removal. He 
does not hold the office by the tenure of good behavior, but at the will of a 
majority of the Legislature; and they are not bound to assign any reason for 


1882.] 


SENATE —No. 150. 


69 


the exercise of tlieir power. Sic volo , sic jubeo , stet pro rcitione voluntas. 
This is the provision of the Constitution, and it is only guarded by the good 
sense of the people.” 

That is, he says, as the Constitution of Massachusetts was then in 
1820 ; and as it is to-day' the Legislature may T , without assigning any 
reason whatever in the record, remove judicial officers. If they 
assign a reason in the record which is matter of impeachment, then 
the proceedings shall be by impeachment; but an address contains 
no charges. The petition here, which has been referred to you, con¬ 
tains no charges : there is nothing whatever in the address which 
shows that any' charges are made. The Legislature remove upon the 
addiess at their pleasure, if they' remove at all: but the address does 
not show that the removal was for crimes and misdemeanors or mis- 

4 

conduct in office ; and therefore there is no evidence whatever that 
there could have been an impeachment. I have quoted Judge Story', 
and it is perfectly conclusive on this point. 

In this convention Judge Story' made a report in which he recom¬ 
mended a change, and recommended the amendment which I read as 
having been proposed to the people. He say’s in his report, — 

“ By the first article of the Constitution, any judge may be removed from his 
office by the Governor, with the advice of the Council, upon the address of a 
bare majority of both Houses of the Legislature.” 

Mr. Trask of Brimfield (p. 473) opposed the amendment, and 
said, — 

“It was considered a defect in our Constitution that the judges were left 
exposed to the caprice of the Legislature on any popular commotion, and it 
ought to be remedied.” 

Mr. Hubbard of Boston (he was for the amendment) said the Con¬ 
stitution was defective in not sufficiently securing the independence 
of the judges. He asked if a judge was free when the Legislature 
migrht have him removed whenever it pleased. 

Mr. Savage (p. 475) said he hoped that we should have better 
provisions in the Constitution,—that we should have the advantage 
of both modes of removal from office, by impeachment, and upon an 
address of the Legislature, so as to meet the moral disqualifications 
and the natural disqualifications for office. 

Judge Shaw (p. 476) said, “ By the Constitution, as it stands, 
the judges hold their offices at the will of the majority of the Legisla¬ 
ture.” He confessed, with pride and pleasure, that the power had 
not been abused. It never has been, Mr. Chairman, and will not be 
if Judge Day is removed. 

Mr. Freeman of Sandwich (p. 477) should have liked this clause 
as well if the Committee had proposed to limit the power of the 


70 


HEARING —JOSEPH M. DAY. 


[Feb. 


Governor and Council to remove judges on the address of the two 
branches of the Legislature to specific cases, such as insanity or disa- 
bilit}’, — admitting, Mr. Chairman, that, as the Constitution stood, 
the right of removal was unlimited. 

Mr. Davis (p. 479), speaking of the Constitution, said,— 

“The power of removal by address, which was intended to apply only to 
cases of disqualification by the visitation of God, in fact extended much 
farther, and was liable to be abused. It was a defect which ought to be reme¬ 
died.” 

Now, Mr. Davis of Boston — and I believe that is the gentleman 
who is referred to by my brother Talbot in his argument — adds, — 

“ It was no light thing that an office, liolden on the tenure of good behavior, 
may be taken away, with the loss of character which it naturally involves, and 
the person removed not even know the reason of it.” 

Mr. Childs of Pittsfield (p. 479), who was against the amend¬ 
ment, speaking of the provisions of the Constitution, said,— 1 

“It was in violation of an important principle of the government that the 
majority of the Legislature, together with the Governor, should not have the 
power of removal from office. This power was in accordance with the princi¬ 
ple of the Bill of Rights.” 

Mr. Lincoln, who was against the amendment, said, — 

“ No judge could be removed but by the concurrent act of four co-ordinate 
branches of the government, — the House of Representatives, the Senate, with a 
different organization from the House, the Governor, and the Council. Was it 
to be supposed that all these should conspire together to remove a useful judge? 
But it w^as argued that future Legislatures might be corrupt. This w r as a mon¬ 
strous supposition. He would rather suppose that a judge might be corrupt. 
It was more natural that a single person should be corrupt than a numerous 
body. The proposed amendment was said to be similar to provisions of other 
governments. There was no analogy, because other governments are not con¬ 
stituted like ours. It was said that judges have estates in their offices: he did 
not agree to this doctrine. The office was not made for the judge, nor the 
judge for the office, but both for the people. There was another tenure, — the 
confidence of the people.” 

Mr. Holmes of Rochester : — 

“ That they could not be removed by either the Representatives, or the Senate, 
or the Executive, was true; but that they could not be removed by all united, 
was as true.” 

Then Mr. Webster, on p. 482, says,— 

As the Constitution now stands, all judges are liable to be removed from 
office by the Governor, with the consent of the Council, on the address of the 
two Houses of the Legislature. It is not made necessary that the two Houses 
should give any reasons for their address, or that the judge should have an 
opportunity to be heard.” 

And then, on p. 486, — 


1882.] 


SENATE —No. 150. 


71 


“ Mr. Webster gave notice that he should move to insert, in place of the 
clause struck out, a provision that judicial officers should not be removed on 
address, until the causes of removal were stated, and such officers heard in 
their defence.” 

Mr. Austin, p. 522 (he was against the amendment), said,— 

“ He would suppose the case, not of mental disability, but the loss of public 
confidence. He knew that such cases were not to be anticipated. But he would 
look to times when the principle might be brought into operation, — when the 
judge, by indulging strong party feelings, or from any other cause, should so far 
have lost the confidence of the community that his usefulness would be de¬ 
stroyed.” 

That is the view that the people of Massachusetts took when they 
rejected the amendment. He adds,— 

“Men are more likely to act in such a manner as to render themselves un¬ 
worthy to be trusted, than so as to subject themselves to trial.” 

Mr. Prince of Boston, who w r as for the amendment, was of the 
opinion that the power of the judges to declare an Act of the Legisla¬ 
ture unconstitutional, “ furnished a sufficient argument against leav¬ 
ing it to the will of a majority of the Legislature to remove them 
from office ; for the exercise of this power in relation to a favorite 
law would be sure to lead to a resolve for their removal.” 

Now, gentlemen, every gentleman in that convention, who spoke 
either for this proposed amendment or against it, admitted the right 
of the Legislature of Massachusetts, under its Constitution then 
(which was the same as it is now), to remove any r judge by address 
without stating the reason or the cause. Some of them said that 
that was right; some of them said that it was wrong, and ought not 
to be so. Those who said it was wrong proposed an amendment 
which I have read to you, and the people of Massachusetts voted 
down that amendment. It seems to me that is an answer to every 
thing that my’ brother Talbot has said on that subject. 

I notice in the report of a part of the Committee last year, that 
on the trial of Judge Prescott, in 1821, Chief Justice Shaw quoted 
what I have read from the speech of Judge Story: — 

“It is true, that, by another course of proceeding, warranted by a different 
provision of the Constitution, any officer may be removed by the Executive at 
the will and pleasure of a bare majority of the Legislature, a will which the 
Executive in most cases would have little power and inclination to resist. The 
Legislature, without either allegation or proof, has but to pronounce the sic 
volo, sic jubeo , and the officer is at once deprived of his place, and of all the 
rank, the powers, and emoluments belonging to it.” 

In the State of New Hampshire, to which my brother Talbot has 
referred, this matter has frequently been considered : and there it 
was considered, too, as a party question, which commanded alter- 


72 


HEARING —JOSEPH M. DAY. 


[Feb. 


nately, on either side, the study of the ablest men in the State. And, 
in the numerous addresses for the removal of all kinds of officers 
(because in that State the right of removal by address is not confined 
to judges, but extends to all officers who hold commissions), there 
never has been any cause stated except that the public good required 
the removal of the officer ; and all men of all parties in that State 
have settled down upon the conviction and the conclusion, that no 
matter what the cause is which prompts the offering and the passage 
of the address, where the record of the Legislature in the passage 
of the address does not state any cause, it cannot be objected that 
proceedings should be taken under the impeachment clause of the 
Constitution, because from the address alone can be determined that 
the officer was removed for misdemeanor, misconduct, or crime in 
office. And, in case of removal by address, there is no punishment: 
it is not a proceeding against the officer, it is not a trial of the officer ; 
it is simply a question whether, for the public good, a certain officer 
shall be removed by what is tantamount to an Act of the Legislature. 
And the reasons for the passage of that Act are presumed to be no 
other than what is stated ; and, inasmuch as the address does not 
show it, it is not presumed that the officer is removed for an)* mis¬ 
conduct in office, or any misdemeanors in office, but conclusively pre¬ 
sumed to the contrarv. 

1/ 

There is another reason in this case why we should not be driven 
to impeachment, and that is, that, although unquestionably some 
of the acts which are named in these grounds for the removal of 
Judge Day are acts that would admit of impeachment, yet others 
are not, but are acts and conduct which would effect his removal 
only upon address. Now, if we cannot convince the Legislature that 
the public good requires his removal on account of these acts, par¬ 
tially on account of these acts which are impeachable, but we are 
driven to an impeachment upon those, there will be two proceedings 
going on, each in order to cover what is alleged in these grounds for 
his removal There must be a proceeding against him by way of 
impeachment upon what are impeachable offences, and another pro¬ 
ceeding against him by address to effect his removal in that way upon 
the grounds which are not impeachable. 

Now, my brother Thompson, in a portion of his argument, treated 
this proceeding as a trial — that Judge Day was being tried. Yet no 
one appears here for Judge Day. The remonstrants come here, and 
appear. If this were a trial, the remonstrants could not appear in 
behalf of Judge Day: they would have no right to appear here. He 
alone could appear to defend himself against these charges. But, 
under the theory which we say is the correct theory, they would have 
the right to appear; and my brother Thompson, and my brother 


1882.] 


SENATE —No. 150. 


73 


Talbot, acting for the remonstrants, are properly before you, because 
this being a question whether or not the public good requires the 
removal of Judge Day, and not a trial of him for any thing, of course 
the remonstrants have the right to come here and show, if they 
can, that the public good requires him to be retained in office. The 
ground which they take in appearing here at all for the remonstrants 
before this Committee (which they' claim to be a tribunal) is entirely 
contradictory to the ground which they take in reference to this being 
a trial of Judge Day. 

My brother Thompson claims with great force, that because the 
Legislature did not pass the address last year, but failed to pass it, 
we have no right to be here now. There are two answers to that. In 
the first place, we present, in connection with the grounds urged last 
year for his removal, other and different grounds which were not then 
known to the petitioners, and which were not before the Committee 
or the Legislature at all last year. Even if their position were 
correct, that a trial upon certain charges last year prevented a trial 
upon those charges this year, it cannot be true, that when new 
grounds are obtained, and new facts learned, these new facts can¬ 
not be considered in connection with the old, but must be taken up 
piecemeal, —every year if you get new facts — a dozen new instances 
of corruption or fraud or violation of law — that those must be con¬ 
sidered separate and by' themselves, and that the others cannot be 
taken into account at all. There can be no such law as that. But 
what we say is, that if there was no charge, and no reason urged 
for his removal this year, except what was urged last year, this 
Legislature has full power to consider this question, and not only 
full power, but it is their duty to consider it. It is, of course, for the 
Legislature to say* whether or not the decision of last year shall be 
final; but it is their duty to say that on a consideration of the case. 
The action of the Legislature of last year cannot bind this Legislature. 
The action of no Legislature, except so far as relates to contracts, can 
bind a subsequent Legislature. As I said before, in the language of 
Hallam, the passage of an address like this is tantamount to an Act 
of the Legislature. It might just as well be urged against the pas¬ 
sage of any bill whatever, which, in the opinion of the Legislature, 
was for the public good, that that bill had been before the Legisla¬ 
ture of last year, and they had refused to pass it. That is no reason. 
The question is, whether now, whether at this very session, — look¬ 
ing at the county of Barnstable, looking at Judge Day’s character, 
looking at his conduct, looking at the want of confidence which the 
best men in that county have in him, — it is not for the public good that 
he should leave that office. You cannot say that somebody else has 
considered that question at some other time, and dodge it in that way. 


74 


HEARING —JOSEPH M. DAY. 


[Feb. 


It is your duty to consider it just as though it was a bill before you, 
because it is in all respects like legislation. As to what was done 
last year, it has been asserted here that the whole Committee decided 
that there was no case made out against Judge Day, — that it was 
proved there was no case. Why, Mr. Chairman, that wasn’t so. 
The Committee decided that the petitioners should have leave to with¬ 
draw. A portion of them stated the reasons; a portion of them did 
not. The reasons which seemed sufficient to them may seem insuffi¬ 
cient to 3 ’ou ; and, if so, it is your duty to find otherwise. But what 
did they find? A minority of that Committee, and the only portion 
of the Committee which gave any reasons whatever, did state facts 
which, in the opinion of a large majority of the members of the 
House (because unquestionably they r all read that report), brought 
them to a different conclusion from the conclusion which was urged 
by the gentlemen who made that report. The} 7 were not lawyers: 
they were common men. They said, “If a judge will do what Judge 
Day has done, we would not want him in our county to have the set¬ 
tlement of our estates when we die. We would rather have a judge 
on whom there rests no suspicion ; we would rather have a judge in 
whose conduct there is not even the shadow of wrong-doing ; we 
would rather have a judge who has the confidence of the commu¬ 
nity in which he lives,” —and that they 7 had the right to say 7 . 

Then, another thing. It is said that the question of intoxication 
was settled last year. It was not so settled. The charge made last 
3 ’ear was, that he was in the habit of being intoxicated. It was 
necessary under that, the Committee said, to prove a habit; but it 
was said that they had failed to make out that habit. We do not 
allege any such thing. We know how difficult it is to prove the sale 
of liquor, even under a prohibitory’ law, where a man sells it openly, 
in the presence of all the community", on a public square, — it is 
almost impossible to get testimony to prove it. Of course people 
do not want to come here and testify 7 that they 7 have seen Judge Day 
intoxicated : his friends do not. His enemies are not where he is : 
they do not see him. So now we simply say, that on certain occa¬ 
sions he was intoxicated, under circumstances which would tend to 
bring his office into contempt. And we say that a judge who would 
put himself into those circumstances, and make a public exhibition 
of himself, such as to deprive a large part of the community in which 
he lives of their confidence and their esteem, ought not to hold an 
office so nearly linked to their interests, and the holder of which has 
charge of the interests of widows and orphans. We do not charge 
that Judge Day 7 at some time, in his own chamber or in his own 
house, took a glass of liquor. We say nothing about that, even if 
he was intoxicated every night before he went to bed. What we do 


1882. j 


SENATE —No. 150. 


75 


say is, that, however that may be, he has no right whatever to be 
intoxicated under circumstances which deprive the community of the 
esteem and the confidence which every man in his office ought to 
have. But that matter has not been passed on at all by the Com¬ 
mittee. 

So, too, in reference to these charges of rudeness. It was alleged 
there was a habit, and it was necessary to prove a habit. That is a 
very difficult thing to prove. It means it was habitual and constant. 
We do not propose to show that this year; but we propose to show 
you some most outrageous exhibitions of rudeness, which must lose 
a man the confidence of the communitv in which those exhibitions 
were made. 

Then, again, it is said that this Committee is not the tribunal to 
try this case, that it ought to be tried before the Legislature. Why, 
gentlemen, you are not tiying the case ; the Legislature is not trying 
the ease: there is no trial at all. The simple question is, whether 
the public good, under all the circumstances, requires the removal of 
Judge Day ; and the Legislature has authorized 30 U to learn what the 
facts are bearing on that question, and those facts it is your duty to 
find. This is not a trial before you ; it is not a trial before the Legis¬ 
lature : it is simply an endeavor to ascertain whether or not the public 
good requires that he should sta}^ or go. 

The Chairman. I understand this last position of yours to be, 
Mr. Wadleigh, that this Committee is simpl}’ in the position of a 
master to whom certain things are referred to find the facts. 

Mr. Wadleigh. Yes, sir: that is all. 

The Chairman. And report to the body that has the ultimate 
decision of the matter. 

Mr. Wadleigh. Yes, sir: so that they ma}^ see plainly whether 
the public good requires the removal of the officer. 

Mr. Crowley (of the Committee). The Committee to report their 
conclusions, too? 

Mr. Wadleigh. Yes : report any thing that they think bears on 
the question as to what the public good does require. 

Now, we allege that there was an understanding that he should 
resign the office of judge, and that he did not resign ; and we ask why 
he was made a custom-house officer — 

Mr. Thompson. That is in reference to the ninth allegation? 

Mr. Wadleigh. Yes, sir. We set out the circumstances attend¬ 
ing the corrupt demanding and receiving of money from the officials 
whose appointments he was to ask or recommend, or which he had 
asked or recommended. If brother Thompson wants me to state 
the facts, I will state that he told the gentlemen who circulated the 
petition — 


76 HEARING —JOSEPH M. DAY. [Feb. 

Mr. Thompson. If he has any new allegation to make, he can put 
that in. If he means to make an amendment — 

Mr. Wadleigii. E never thought of such a thing. I was about 
to state that he told the gentlemen who circulated the petition that 
he would resign, and so many people signed the petition according!} 7 . 

Mr. Thompson. And he did resign, and withdrew it at the per¬ 
sonal solicitation of Gov. Andrew. 

Mr. Wadleigii. It is immaterial whether he resigned or not, or 
whether he cared to resign or not. That is not the gist of this 
charge. 

The Chairman. If you will pardon me a moment, I would like to 
sa} 7 right here that (I do not know how it would strike the rest of 
the Committee) it seemed to me that Mr. Thompson’s argument 
went largely to the question of the sufficiency of the specification 
rather than it did to the substance of it. The main objection which 
you made, Mr. Thompson, if I had the correct idea, was, that it did 
not allege the parties and the times with sufficient particularity. 
Now, it seems to me that that is in the nature of an objection to the 
sufficiency of the bill of items rather than to the allegation itself. 

Mr. Thompson. I failed, then, to make myself understood. I 
meant to make it clear that I objected to it because it had no relation 
whatever to his office, and was an allegation, that, in a federal office, 
he improperly conducted himself, that it was an impeachment of 
every one of the officers that were appointed by his recommendation, 
that it would involve the trial of each particular case, that proceed¬ 
ings of this kind certainly ought not unnecessarily to bring in parties 
who are presumed to be innocent, that it was a matter of so long ago, 
and that it bore upon its face proof conclusive of its own want of any 
substantial basis, —the statement of it itself showed that there could 
not be any substantial basis for it. I did not mean to put the main 
stress, or but little, upon the form in which it was presented ; but I 
did mean to lay stress upon the substance of it. 

The Chairman. I understood that you objected to the allegation ; 
but it struck me that your argument was largel}’ directed to showing 
its insufficiency. 

Mr. Thompson. Then I was unfortunate in not making myself 
understood. I did not mean to make that the leading point at all. 
I only alluded, as I supposed, to the mode of setting it forth, to show 
that the mode in which it was set forth proved the groundlessness of 
the charges themselves, and that the mode of setting it forth showed 
that there wasn’t any case. I did not mean to make an}' objection to 
the manner of pleading, simply as a manner of pleading, at all. 

Mr. Crowley (of the Committee). You object to the Committee 
considering it at all ? 


1882.] 


SENATE —No. 150. 


77 


Mr. Thompson. I object to their considering it at all. 

Mr. Crowley. That is the way I understood your argument. 

Mr. Thompson. Certainly : I meant to make myself understood in 
that direction. I am sorry that I did not. 

Mr. Wadleigh. Mr. Chairman, when my brother Thompson says 
that the manner in which this is set out shows that there is nothing in 
the charge, he is laboring under a great mistake. He will find, if 
this charge is tried, that there is a good deal in it, — if it is examined 
well, I should say. Would brother Thompson expect me, if I had 
the names of the parties who received money, to put them in here at 
this stage of the case, and have them go all over the country? No, 
sir: that is not the way I should do, and it is not the way he would 
do. 

Mr. Thompson. But you don’t mean to say, Mr. Wadleigh, that 
the time of presenting them is material, that it is in the least objec¬ 
tionable to present them now or at an}’ other time? They must be 
presented if this case goes on, and I submit it does not matter 
whether they are presented to-day or next Tuesday. The fact that 
they must be presented, and that my brother Wadleigh feels now 
the force of that, I submit gives great weight to the position which I 
took at the commencement. 

Mr. Wadleigh. Mr. Chairman, what we allege under the ninth 
section is not a matter of impeachment: it is no misconduct in the 
office of judge of probate. The only effect it could have upon the 
question before the Legislature would be to show that Judge Day 
was, by character and by conduct, unfitted for the office of judge 
of probate. It would also show that the time is soon coming, if 
it has not already come, when there will be in him, from these devel¬ 
opments, such an entire want of confidence, and towards him such 
well-founded and grave suspicion and distrust, as that no Legislature 
should allow him to hold an office which brings him into such near 
relations with the people in Barnstable County. The want of public 
confidence is one of the reasons why the right of address is to be 
exercised. Does mv brother Thompson say, that, if it turns out that 
that allegation is true, the people of Barnstable County are of such a 
character that they will have confidence in a man who would be guilty 
of such corruption? Why, this morning he characterized justly an 
act like that. He asked whether it could be supposed that a man who 
had been an abolitionist and an anti-slavery man could do an act like 
that. Why, that argument, if it is good for any thing, would clear 
Judas Iscariot of any thing wrong. Yet when we offer to prove that 
Judge Day has been guilty of just that, he turns around, and says 
that has nothing to do with this case. Why hasn’t it? Is this Com¬ 
mittee going to decide, is the Legislature of Massachusetts going to 


HEARING —JOSEPH M. DAY. 


78 


[Feb. 


decide, that such a man should hold a judicial office in the State of 
Massachusetts ? 

Mr. Crowley. That was twenty-one years ago. 

Mr. Wadleigh. Is the statute of limitations pleaded against 
this? Is it to be said that Judge Day did this twenty-one years ago, 
and concealed it every day until within three weeks, and that this, 
which will deprive him of all public confidence when it comes out, 
is not to have any weight with the Legislature in determining whether 
he shall stay in office or not? Is he a different man from what he 
was then? Why, all these things which we charge are connected. 
The men who come up here and petition against him say that his 
conduct has been more or less on this same pattern ever since,— 
that his character has not changed. And I ask you, Mr. Chairman 
and this Committee, whether the weight of any counsel brought here 
before you or before the Legislature is to induce the legislators of 
Massachusetts to keep a man in office who would do a thing like 
that? I cannot believe it. I might say, in reply to my brother 
Thompson, when he says that he could not have been guilt} 7 of a 
crime so gross, that my brother Thompson has been charging on 
the party, to which Judge Day then belonged, all sorts of corruption, 
and profligacy, and misuse of public funds, and bribery, and every 
thing else. 

Mr. Crowley. Personally I would like to have it exposed myself. 

Mr. Thompson. If there had been any such fact as this known, it 
would have been told on the stump against Judge Day, and against 
the Republican party. 

Mr. Wadleigh. If it had been known, no doubt my brother 
Thompson would have been delighted to have brought it before the 
people ; but it was not known generally: it did not come to his 
knowledge. What I say is, that, no matter where it hits (you have 
no right to consider that), the man who was thus guilty is not fit 
for judge of probate. I can only state, in reply to what my brother 
Thompson says about this being groundless, that I was very careful 
not to make this charge until the proof had been furnished me. 
I refused to do it until then. But the proof which has been fur¬ 
nished me seems so clear and so conclusive and so undeniable, that, 
in behalf of the gentlemen whom I represent, I could no longer re¬ 
fuse. Mr. Chairman, I have no feeling against Judge Day. I know 
nothing about him whatever except what I have learned in connection 
with this case within the last few weeks. He is almost unknown to 
me by sight. If this charge is true, and these other charges are true, 
he should not hold that office. The question which the Legislature 
will ask is, whether they are true; and I do not see upon what 
ground my brother Thompson can urge that they are not material in 


1882 ] 


SENATE —No. 150. 


79 


this case. Can lie say that a man of such a character should hold 
office in Massachusetts ? — a man guilt\ r of an act which my brother 
Thompson characterizes as indicating the veiy depth of baseness and 
dishonesty? And, in this matter of removal by address, the whole 
character and conduct of Judge Day, so far as it bears upon public 
confidence, public respect, and public esteem, is material. 

Mr. Wadleigh then made the following motion : — 

“Moved, That the evidence of last year be considered by the Committee, so 
far as the same is applicable to the grounds on which Judge Day’s removal is 
now asked, and so far as the same is offered by the counsel on each side.” 

• 

Adjourned until 9.30, Tuesday morning, Feb. 28, at the Green 
Room. 


80 


HEARING —JOSEPH M. DAY. 


[Feb. 


FOURTH HEARING. 


Green Room, State House, Boston, 
Tuesday, Feb. 28. 

Senator Jennings, Chairman, called the Committee to order 
about 10 o’clock, and said, The Committee are now read} r to pro¬ 
ceed with the hearing. 

Mr. Talbot. The counsel for the remonstrants venture to ask 
the Committee to listen to them, as they proffer some suggestions that 
they think pertinent, arising out of what has been said since we closed 
by the counsel for the other side, and especially as I notice some 
members of the Committee in attendance this morning who were not 
in attendance through all of Friday afternoon. 

The Chairman. I trust that the counsel will be as brief as possi- 

♦ 

ble. There has been a great deal of time given by the counsel to 
their arguments. 

Mr. Talbot. The counsel will endeavor not to trespass unneces¬ 
sarily upon the attention of the Committee. 

Among the intimations from the counsel on the other side which I 
wish to notice are some quotations from Mr. Austin, a member of the 
Constitutional Convention of 1820, speaking of address as an unlimited 
power. I venture to speak of that matter again, and I shall begin by 
stating how it was before that bod}'. I repeat that the question 
before the Constitutional Convention was not as to the extent of sub¬ 
jects which address reached. There was no motion on that subject 
pending before the convention ; they were not discussing it; and 
there was no need, there was no direct need, of a single member of 
the convention giving any opinion upon that subject. There was a 
way in which the}' might speak of address as unlimited without touch¬ 
ing on the question upon which I have the honor to address this Com¬ 
mittee. They were talking about the manner in which address should 
be exercised, whether it should be merely by a majority vote, with¬ 
out any provisions for stating the case on the record, and giving the 
party a hearing. That was the question before the convention. 
Now, you see, there was no need of any member of the convention 
speaking at all to the question I am trying to argue ; and yet the fact 
is, that ten of those members did speak on that question, and of address 
as limited in the scope of its subject. And then I had the honor to 
present to the Committee the other day — and they were merely sam¬ 
ples — not less than three State constitutions where all these matters 


1882.] 


SENATE —No. 150. 


81 


were limited. Where, in the first place, the subject was limited, 
there could be no address in general except for mental or physical in¬ 
firmity ; and, sccondl}*, address for that cause could only be on notice, 
hearing, and a two-thirds vote. Now 3*011 see the condition in which 
the question is left b } 7 the quotations which I submit. In the ardor 
of debate it was perfectly proper to speak of address as unlimited, 
because they were talking of the manner of its exercise; 3 ’et it is a 
fact that the discriminating men in the convention said the scope 
of address was limited. Mr. Webster, as I remarked last }*ear, was 
too old a debater to make an}* admission at all. He kept clear of the 
subject, and said nothing about it, but talked about the danger of its 
exercise, and asked that it be guarded. 

I spoke of Judge Shaw as passing from that convention into the 
Legislature of 1821, and there taking part, not in the removal of a 
judge of probate b}^ address, but in the process of impeaching a judge 
of probate. I have no inclination at all to repeat what I said then ; 
but I want to show you now, not onl } 7 what he did, but I shall show 
}*ou, that, in the presence of that court of impeachment, he spoke of 
there being no remed}* for the misconduct of a judge of probate ex¬ 
cept b } 7 process of impeachment. That is his language. He is con¬ 
sidering how far the misbehavior of a judge in office ma } 7 be reached 
b}* impeachment; and the suggestion never comes to him of another 
method of dealing with judicial misconduct. If he cannot be im¬ 
peached, he cannot be removed, is what Chief Justice Shaw contem¬ 
plates. I read from “Prescott’s Trial,” p. 181, — 

“ Perhaps, in this view, the commission of any heinous crime, though not 
immediately connected with the execution of his office” [notice the extent to 
which he goes], “ by utterly disqualifying him, and rendering him incapable of 
performing the duties of an office requiring dignity, confidence, ability, and 
integrity, might reasonably be construed to be misbehavior and misconduct in 
office.” 

What does he want to construe it in that wa}* for, except for the 
purpose of bringing it within the scope of impeachment? 

“I should certainly yield with great reluctance to the position of one of the 
learned counsel, that the commission of an infamous offence by a judge, as 
perjury or forgery, for instance, would not render him liable to impeachment.” 

Now comes the consequence of excluding that class of offences 
from the scope of impeachment. 

“It would certainly be a great defect in the Constitution, if a man could be 
brought to the bar one day, convicted of an infamous offence, and sent to the 
pillory, and the next could assume the robes of office, and sit in judgment, and 
denounce an ignominious punishment upon a fellow-criminal not more infa¬ 
mous than himself.” 


82 


HEARING —JOSEPH M. DAY. 


[Feb. 


That is the consequence which Judge Shaw understands to arise if 
that offence cannot be dealt with by impeachment; in other words, 
there is no remedy for that but impeachment. 

The learned counsel on the other side called to your attention on 
Friday Hallam’s “Constitutional History of England,” and stated 
that the removal of judges by address had been a frequent process, 
and a familiar one, in England. I am very sorr}’ that he was unable 
to give me any references ; because, if he had given them to me, it 
would have shortened my labors. I have done the best I could in the 
interval, and I believe I have something on that subject to la}^ before 
the Committee. You may recollect that there were some words passed 
back and forth between us as to the time when this practice of address 
was first adopted in England, the counsel on the other side calling my 
attention to the fact that it was in the reign of William the Third, in 
the year 1700. In that he was entirely correct; and, though the matter 
w r as afterwards legislated upon as late as in George the Third’s reign, 
the date to start from is 1700. Now, gentlemen, I have looked that 
matter up. From 1700 to 1805 the indices of the parliamentary de¬ 
bates show not a single case of the removal, by address, of a judge. 
From 1805 to 1830, so far as any general indices can be found, they 
show not a’ single case of such removal. After 1830 there were between 
one and two hundred volumes, the indices of which must have been 
examined in order to make the investigation complete ; and y^ou will 
excuse me if I say I hadn’t the time to do that. Now, the indices 
show not a single case ; and I do not propose to stop there. I do not 
propose to leave this as a mere negative assertion. I am proposing 
to make positive assertions. In 1805 there was an attempt at ad¬ 
dress in England, one of the judges in Ireland — Judge Fox — being 
the respondent. The matter was debated entirely through one Par¬ 
liament and over into another; and at least twice, at least twice, Mr. 
Chairman, in that debate, the assertion w r as made that that was the 
only case from the year 1700 ; and, as that sliow r s that my examination 
of the indices from 1700 to 1805 was correct, I think yon may assume 
for the present that my further examination of the index down to 
1830 also w r as correct, and that I have authority to state here that 
no English judge was removed by address from 1700 to 1830. 

Secondly, all the speakers who pushed forward that matter, and 
I think also all those that resisted it, — the attempt to address Judge 
Fox off the bench, — spoke of it as a judicial proceeding, not a legis¬ 
lative one, — as a judicial proceeding, and not a legislative one ; and 
only as such v r as it continued from one Parliament over to another, 
legislative business not surviving the dissolution of a Parliament. 
That is a point worthy of consideration. 

The third matter is still more important. From the time that 


1882.] 


SENATE —No. 150. 


83 




proceedings first started — I am a little ahead: I must go back. 
The proceeding started in a way which made the position which I 
am now taking the hardest to maintain, — because, to prevent the 
proceeding from going through, involved a denial on the part of 
the House, before which the proceedings were, of a certain authority 
on its part. The discontinuance of proceedings was, in other words, 
a self-denying ordinance. The proceeding began in the House of 
Lords; and, if that body refused to entertain that proceeding, what 
would the} 7 deny? They denied that the}’ had any power to initiate 
a proceeding against a judge for misconduct, and that the whole 
initiative power over that subject w r as in the House of Commons. 
Now you can readily see, gentlemen of either branch, that, if the 
question had been presented in the Commons, it might have appealed 
to the pride of the House, and the Commons might have said, “ This 
is trenching on our right, — our right as the Grand Inquest of the 
Realm, our right to impeach.” It did not come that way: it came 
up in the House of Lords first; and, if they were to fling it out, it 
was to deny that they had any power to initiate proceedings against 
a judge. Now, from the time those proceedings were begun against 
Judge Fox until they ended, — and I can show you how they ended, — 
there were members of the House of Lords standing up, and taking the 
identical position which I am trying, feebly, to maintain here. They 
said, you have no right to proceed for removal by address : it must be 
by impeachment. And a stronger resemblance to this case lies in the 
fact, that through one Parliament the advocates of address succeeded 
in carrying on the proceedings and in passing the case over to the sec¬ 
ond Parliament. Then, in the second Parliament, Judge Fox comes 
in with a petition ending in a very respectful way, and asking the 
House to take such proceedings in his case as to them seemed proper. 
The Lords had gone so far as to call Judge Fox before them, and com¬ 
mence the taking of testimony ; and the case was begun, and the prose¬ 
cution had put in their evidence. One of the speakers on the side of 
the prosecution said he did not see how they could stop without erasing 
the evidence. Lord Grenville, who was then at the head of the gov¬ 
ernment, comes in, and makes a motion to do what? To postpone the 
further consideration of that case for two months, understanding that, 
when that day would come round, Parliament would not be in session ; 
and he stated it in that way. And, in his closing argument, there is no 
attempt to get votes : he puts it on judicial grounds. He says, “ No 
man ought to vote for this motion which I now make unless he has 
made up his mind that this proceeding ought not to be revived ; ” and 
upon that basis he put the question. Mr. Chairman, as I notice from 
a remark of one of the speakers, Lord Grenville spoke three hours; 
and I presume that you will be very glad to hear some of his words, 


84 


HEARING —JOSEPH M. DAY. 


[Feb. 


although I have a little delicacy about submitting them to your con¬ 
sideration, and to that of our brother on the other side, as I may call 
out from brother Wadleigh the remark that the honorable lord was 
entirely mistaken in the matter. He may say that my author in this 
instance doesn’t know an}^ more about it than Chief Justice Shaw 
did. That would put him in a bad position. Let me, however, 
read — 

The Chairman. I would suggest, Mr. Talbot, that the authority 
is a matter that can be referred to by the Committee. There was so 
much time given to the arguments that these long quotations from the 
authors can be dispensed with at present, and simply put into our 
report; and will so be disposed of, unless 3*011 think it absolutely 
necessary to read them. 

Mr. Talbot. I should be very glad to have these appear in the 
report, for the benefit of the House. 

Mr. Wadleigh. I don’t object to it, brother Talbot. Let it go 
in : I am willing. 

The Chairman. I don’t think that is the question. It’s a matter 
for the Committee to say whether we agree to have these long ab¬ 
stracts put in, after the very able presentation of arguments by the 
counsel for the remonstrants; though of course, if the counsel think 
it absolutely essential to the rights of the respondent for them to go 
in here, if the Committee see fit, the quotations can be admitted. 
But it strikes me that the argument is so clearly presented by the 
counsel on all the points made in this case, that, with the mere refer¬ 
ence to the author, we should be sufficiently informed of the views 
taken in his day. 

Mr. Talbot. Will the Chairman allow me to put these extracts 
into the report without reading them here ? They will then be in con¬ 
venient shape for the reference of the Committee. 

The Chairman. How extensive are the quotations, Mr. Talbot? 

Mr. Talbot. They are about two or three pages of this book, in 
all, — not so much as that, I should think. 

The Chairman (after conferring with his associates). The opin¬ 
ion of the Committee seems to be that we are willing to allow counsel 
to have the extracts printed in the report. 

Mr. Talbot. That will answer m 3 " purpose, Mr. Chairman; and 
I will make what else I have to sa 3 T upon this subject ver 3 " brief. 

In his three hours’ speech Lord Grenville denied emphatically and 
entirety all right of Parliament to proceed against a judge for mis¬ 
conduct b 3 T address, with a single exception which he notices; and 
this consideration was presented to m 3 T mind by the gentlemen with 
whom I consulted last winter. That case is the case of our Han¬ 
cock Count 3 T judges. Lord Grenville thought, if there was a con- 


1882.] 


SENATE —No. 150. 


85 


viction, so that misconduct was a matter of record, so that the Par¬ 
liament should not have to take the question up and try it, in that 
case they might proceed even for misconduct by address. I am frank 
to say, however, that I am not quite satisfied with that view ; although 
others with whom I have conversed have taken it. 

Senator Bkuce. Wasn’t it there considered as a question of expe¬ 
diency rather than of right? 

Mr. Talbot. I should have satisfied the mind of the honorable 
senator with the reading of the extracts I had in hand; and he will 
be satisfied with it, if he reads them. It is emphaticalty a matter of 
right. Let me read a very short extract in answer to the honorable 
senator:— 

“ To state the clear conviction I entertain, strengthened as it has been by 
every opportunity I have had of examining it, that this proceeding is, cib initio , 
wrong; that it is carrying on before a court not competent to inquire into it r 
and that it is in a course not to be brought to the issue proposed.” 

Under the direction of the Committee,,1 do not feel at liberty to 
read any further extracts. This, then, Lord Grenville says in clos¬ 
ing, the very last sentence reported but one, that he thought no man 
ought to vote for this motion unless he was prepared to say that the 
proceeding ought not to be revived. Then follow the remarks of those 
who took the opposite view, and others in support of Lord Grenville’s 
view ; and among them I must notice on Lord Grenville’s side no less 
a jurist than Chancellor Erksine. Then it passes on to say — and 
this I apprehend the Committee will allow me to submit — that 

“The House then divided on Lord Grenville’s motion for taking the charges 
into consideration on that day two months: Contents, 25; Non-contents, 16; 
Majority, 9.” 

The same majority by which the honorable Senate of Massachusetts 
disposed last winter of the charges against the judge of probate and 
insolvency for Barnstable County; and that ends the parliamentary 
proceedings against Judge Fox. I could find no trace of them 
afterwards. The only English practice I can find under the law of 
address is one case in a hundred and thirty years, and that was flung 
out of the House of Lords on the very grounds that we are taking 
here. 

But why need I argue it, after the admissions that have been made 
on the other side? The counsel distinct^ stated that the Legislature 
had no power to proceed for misdemeanors and crimes by address, if 
it put misdemeanors and crimes into the record. After reading the 
extract from Judge Story, in which he said that you could not proceed 
against a judge by address for misdemeanors and crimes, he put in 
the qualification, Yes, if you allow the misdemeanors and crimes to 


86 


HEARING —JOSEPH M. DAY. 


[Feb. 


appear on the record. Do you mean to proceed against this judge 
for any cause whatever that you do not want to put on the record ? 
Do you propose to resort to the abuse of law for the purpose of pur¬ 
ging the judiciary? Is that a practice suitable for those who are sit¬ 
ting in judgment upon a judge? You are under oath to support the 
Constitution of Massachusetts ; and if the intent and purport of that 
Constitution is that you should not proceed for misdemeanors and 
crimes, I apprehend that you are not going to proceed for misde¬ 
meanors and crimes, no matter what trickery might lead you to make 
that course successful. 

It is 3 r our privilege, before 3 'ou take one step forward in this doubt¬ 
ful proceeding, to ask the information and advice of the Supreme 
Court; and the humblest individual in the State has the right to that 
opinion before execution is done upon him. His case is not decided 
until his questions have been heard in the court of the last resort; 
and I ask 3 ’ou to give — and I think you will find no reason against 
it, but ample reason for it-—this member of the judiciary, holding a 
commission of Massachusetts, this representative of the majesty and 
dignity of the Commonwealth, the same treatment which the Consti¬ 
tution and the law have provided for the humblest citizen. 

[Following are the abstracts submitted in print to the Committee 
by Mr. Talbot during his argument above, but not read.] 

Lord Grenville: — 

“But, my lords, I have much and more important objections to the proceed¬ 
ing. It has often been felt by me as an indispensable duty, in the course of 
this proceeding, to state the clear conviction I entertain, strengthened as it has 
been by every opportunity I have had of examining it, that this proceeding is, 
ab initio, wrong; that it is carrying on before a court not competent to inquire 
into it, and that it is in a course in which it cannot be brought to the issue 
proposed. My lords, this conviction rests on plain and broad considerations, 
which, the more they are examined, the more they will be found to be the 
undeniable law of Parliament, and from which results this proposition, ‘ That 
no criminal complaint can be preferred and proceeded upon in thi§ House.’ 
That this House can try criminal matters upon impeachment by the Commons, 
or, as a court of appeal, by appeal or writ of error, I admit; but in no case 
whatever, with the exception of the maintenance of its own principles and 
privileges, can it entertain any criminal jurisdiction. In stating this, your 
lordships must all be aware, I am only stating that which is laid down by all 
writers on the law of this country, and received by all the authorities in the 
Constitution. Therefore those who maintain there is an exception, ought to 
think it incumbent on them to produce a new law, which has "weakened the 
force of the old law; a new resolution of Parliament, which has weakened the 
force of a former resolution; a new precedent, which has weakened the force 
of more ancient precedents. We know, my lords, what was the answer given 
by Lord Chief Holt, long since the llevolution, upon a complaint being pre¬ 
ferred against him, for what was alleged to be the undue exercise of his judi¬ 
cial functions. His answer was, that he was bound to exercise his judicial 
functions according to law and the best of his judgment, and that his conduct 


3882.] 


SENATE—No. 150. 


87 


was not liable to be examined before your lordships. In that answer this 
House acquiesced, thereby establishing a complete conclusive precedent appli¬ 
cable to the present case. Here was a decision where the same question as the 
present one was brought under consideration; where the person accused was 
distinguished for his knowledge of the laws of his country; where the subject- 
matter of accusation had recently occurred; where the whole of the circum¬ 
stances were brought before tlie House; and where the demurrer to your 
jurisdiction, being thus solemnly made by one of the greatest lawyers of his 
time, was, upon mature consideration, admitted by your lordships. When I 
have said this, it seems to me, my lords, that I have exhausted the whole 
question. There are no instances, save those which have been condemned, 
save those cases which gave rise to the condemnation of principle, — no 
instances, if I remember right, where there has been the least ground of 
precedent for this House entertaining originally any complaint of a criminal 
matter. The doctrine for which I contend rests on the general principles of 
the Constitution, on the statute law, on the resolutions of Parliament, and on 
precedent. It rests also on the reason and analogy of the case; on motives of 
convenience so strong, that, if even there was no authority to quote, the 
argument of convenience, which in a doubtful case might be allowed to pre¬ 
vail, ought unquestionably to prevail in this. 

“ My lords, by the Constitution of this country, which we have recently been 
called upon to put in action, the House of Commons is the Grand Inquest of 
the nation. All crimes are cognizable, either in the ordinary courts of justice 
or in the High Court of Parliament; but it is no more competent for any other 
court of justice to outstep the limits of its Constitution, or to intrust to 
judges the functions of juries, or to juries the functions of judges, than it is for 
your lordships, as one of the component parts of Parliament, to invest and 
make yourselves, not the judges only, but the accusers. I contend that the 
House of Commons is the Grand Inquest of the High Court of Parliament; that 
it is competent for them alone to bring commoners before your lordships for 
high crimes and misdemeanors. Even in the case of peers, the Inquest is pre¬ 
ferred elsewhere, and the bill is removed to your lordships’ House, in order that 
you may proceed. Therefore I maintain, that, in the present case, there is sub¬ 
version of this practice. The articles of complaint state what may be said to 
amount to high crimes and misdemeanors in a judge. Shall not, then, a judge 
be entitled, in the execution of his office, to the same security as any other 
individual ? I would ask your lordships, whether any thing short of the most 
positive, clear, and undeniable stream of precedent, ought so to alter the Con¬ 
stitution of this House as to make those matters cognizable by original com¬ 
plaint in the case of a judge, which are not cognizable in the case of any other 
subject in the country, be the charges against him what they may? I was 
proceeding, my lords, to refer to the argument of convenience. . . . 

“ My lords, in every case of wrong, the laws of this country have provided 
a lawful remedy; in every case of crime, the laws have pointed out a lawful 
course of prosecution. If it is the intention of any noble lord to argue this 
case by saying that we are beginning in a course of deliberate consideration, 
I answer that we are proceeding in a case of crime and misdemeanor; and it 
does not become your lordships, who are not a court of original jurisdiction, 
to entertain, at the suggestions of parties, either a matter of private wrong 
or of crime and misdemeanor, which can only be brought on in the Commons. 
This is a case as clearly excluded, not from your power, perhaps, but from all 
lawful and prudent exercise of your power, as if your lordships were to decide 
whether an individual, who was to be tried before another court, had or had 


88 


HEARING —JOSEPH M. DAY. 


[Feb. 


not committed murder. You are called to try that which is a matter of trial 
in the court below, which may eventually be brought here, and therefore ought 
not to be prejudiced. If it be incompetent for this House to entertain the 
complaints of private parties, how much more strongly ought prudence to 
induce you to adhere, with the most scrupulous attention, to the rule for which 
I am contending, especially where the party aggrieved is in the situation of an 
officer, or at least of a person exercising functions in the court. If you once 
opened the door to this question, I ask your lordships whether other subjects 
of the country will not think themselves entitled to the same sort of redress 
as Mr. Armstrong, one of the petitioners in this case. Now, will you hence¬ 
forth shut your doors against any person who, instead of prosecuting his com¬ 
plaint in the ordinary way, shall come to your lordships and say that the judge 
of the last assizes decided a cause against him, or that he made some observa¬ 
tions reflecting upon his character as one of the jury ? He might say, ‘ I 
know other modes of redress are open to me; but I prefer coming to the bar 
of this House to desire your lordships to investigate all these matters, and to go 
into the whole trial of John Nokes and Thomas Styles. Where can the line 
be drawn between the personal grievance of any man by Mr. Justice Fox in 
Ireland, or the grievance of any person in this country, who may think proper 
to quarrel with the verdict of the judge the next summer assizes? See also in 
what a situation you will place the judges. Against all other modes of pro¬ 
ceeding they have their protection. They know the confidence which the law 
reposes in persons invested with the judicial character. They know the power 
the law gives them, and the high responsibility attached to them ; but they 
are not prepared to know that every time they give their opinions, or deliver a 
charge to a grand jury which may happen to be disapproved, they are subject to 
be brought before this House to defend themselves by counsel, and to be 
obliged to produce evidence to satisfy your lordships that their opinions were 
right. Even if they ultimately succeed, they will be certain of undergoing an 
ordeal of at least three, and perhaps of seven or fourteen, years. I cannot 
conceive a principle more injurious to the administration of justice, or more 
dangerous to the independence of the judges. You leave it to the pleasure 
of every person to complain of a judge whenever he may think proper. Your 
lordships, as a branch of the Legislature, have said that there shall be no 
reduction from the salaries of the judges; that they shall not even pay towards 
the exigencies of the government: yet, though you determine that neither the 
crown or Parliament shall curtail them, you allow the worst individual of the 
country, whose conduct may have subjected him to the animadversion of a 
judge, to do what will produce the same effect. By suffering him to bring his 
complaint to the bar of this House, it is in his power to amerce a judge to the 
amount of his whole salary, and to deprive him of the recompense of his 
labors for the public. This is not a case in which you will have to pronounce 
upon your honor, but you are to exercise an extraordinary power, stated to be 
given you by an Act of Parliament. With respect to the Act of Parliament, 
it has been said, that, unless you admit the power of the House of Lords, 
there is no clause in the Act by which you can give effect to the clauses for 
the removal of the judges. In my opinion, there is a way by which the clause 
may be satisfied without drawing from it by a side wind, — a conclusion in 
favor of the authority exercised by your lordships. There are many other 
cases with regard to which matters may arise for the exercise of the discretion 
of the House, without the necessity of your lordships deciding originally. A 
judge may be in a situation of notorious incapacity from age, and yet it may 
happen, that through the peevishness natural to age, or ill-humor, or some 


1882.] 


SENATE — No. 150. 


89 


other cause, he may wish to adhere to his situation after he has been, in the 
opinion of all mankind, rendered unfit for its duties. . . . 

“Another case maybe supposed. It would be, where a judge had been 
convicted elsewhere, — liable to the same equal laAvs which he administered to 
others, but of which a proceeding of this kind would deprive him, —having the 
benefit of an inquest of a grand jury, and afterwards, upon being tried by a 
court competent to decide, convicted of the matter charged against him. It 
might be a proper exercise of your lordships’ functions to say, that, although 
such conviction was not for a misdemeanor that induced the forfeiture of office, 
yet it rendered him unfit to be continued in the exercise of the judicial func¬ 
tions. Having had the benefit of a trial by jury, he would, after conviction, be 
a fit object for the discretionary exercise of the power of this House to advise 
his Majesty to remove him from a situation which he could no longer fill with 
propriety. 

“To govern solely according to law is the grand secret. It has been shown 
by all history that the only mode by which any part of any dominion can be well 
administered is to govern strictly and conscientiously according to the letter of 
the law, without admitting of the least deviation. In order to secure this, you 
must secure respect to those who administer the law; and, in my conscience, I 
think nothing can be less calculated to secure it than such a proceeding as this 
is. If any judge has trangressed, the law is open. If he has acted criminally, 
let him be acted against criminally. It is in that manner we ought to teach the 
subjects of the country, high and low, that we are all on an equal footing. By 
any other course of proceeding, by any deviation from the settled rule of law, 
be the arguments of convenience ever so pressing, nothing can result but 
opinions destructive of all principles of obedience to the law. It is for that 
reason I have moved to adjourn it to a day when this House in all probability 
will not meet. But I think no man ought to vote for the motion who is not 
prepared to say that the matter cannot be revived.” 

The Lord Chancellor : — 

“But, whatever might have been his deportment, he was entitled to a fair 
trial. One of the first principles of British justice in the administration of our 
penal law is, that the party should be accused. Then his case was to be sub¬ 
mitted to the grand jury, which was a secret inquest in the first instance, and 
witnesses were to be examined before them; then, if they saw just cause, he 
was put upon his trial, and he was judged by twelve impartial persons, who 
were wholly unacquainted with what had passed upon the inquest; and, when 
he stood at the bar of his country, no man’s mouth could be opened but in his 
presence, no prejudice could be raised which he could not immediately counter¬ 
vail. . . . 

“The two modes of proceeding are altogether distinct, and, in my humble 
apprehension, were designed to effect totally distinct objects.” 

[The above are extracts from the report of proceedings in the 
House of Lords, on petition of Judge Fox, all the extracts being 
from Lord Grenville but the last, which is from address of Lord 
Chancellor Erskine. See “ Cobbett’s Pari. Debates,” vol. vii., 1806.] 
Mr. Thompson. Mr. Chairman and gentlemen, I only want to say 
a word in reply to some of the positions taken by the counsel for the 


90 


HEARING —JOSEPH M. DAY. 


[Feb. 


petitioners, and first in reference to tlie ninth specification. The 
counsel asked if we are to claim the protection of the statute of 
limitations. The counsel for the respondents claim that twenty-one 
years of faithful and continuous service in behalf of the Common¬ 
wealth ought to be sufficient to bar an investigation into a charge of 
this character ; that the fact that Judge Da} 7 was at that time judge of 
probate does not make that allegation any more proper to be inquired 
into than though at that time he had not held that office. Supposing 
Judge Day had been appointed ten years ago, would the Committee 
think it right and proper to go into an investigation of his acts twenty- 
one years ago? I submit that a charge of this kind cannot have been 
made except from malice; that stale charges of this kind are never 
presented except for a malicious purpose ; and that it would be a 
great violation of the rights of the people of Barnstable, as well as 
of Judge Day, to go into matters more than twenty-one years old, 
having no reference at all to the manner in which he discharged his 
official duty. The counsel, in his view of this subject, said that 
evidences of this kind were unknown last year; and that was his 
excuse, — that this new allegation had come to the ears of the peti¬ 
tioners after the examination of last year. Did he quite mean it? 
Doesn’t he rely on David Bursley to substantiate this? Doesn’t he 
ask for that deposition to be taken ? — the deposition of this man 
who was one of the petitioners last year, and furnishes much of the 
virus to carry this proceeding forward? It was known to them so 
far as any facts were concerned. I submit that what I said about it 
is perfectly true, — that last year, the men conducting the trial, know¬ 
ing the situation, being familiar with the facts, didn’t desire to present 
it. They all knew that it would be of no advantage to present it, 
and that it ought not to be presented. And it is in the interests of 
good order, in the interests of fair proceedings, in the interests of 
all the parties for this Committee, to decline to go into an examina¬ 
tion upon charges of that nature, so old, and which cannot be of any 
value at all in determining the fitness of Judge Day for the office 
from which they undertake to remove him. He asks if the people 
will have any confidence in a man who, twenty-one years ago, did a 
dishonorable thing. I submit, that, if twenty-one years is not a suf¬ 
ficient probation, then I know not what limit can be fixed ; and, if 
one after fifty or sixty years of honest and valuable service to his 
country is to be tried and annoyed by the examination of an act of 
his boyhood, it is certainly unjust, and a course which I think that 
this Committee will be wholly unwilling to sanction. In relation to 
the other question I spoke upon, I wish to notice a few suggestions 
made by the counsel for the petitioners, upon the question of res adju- 
dicata: this is the position which he took, and squarely, — that if the 


1882.] 


SENATE —No. 150. 


91 


petitioners had this year presented their petition upon grounds im¬ 
peachable, alleging as the reason for removal misconduct in office, 
that then Judge Day would have had the right to have a trial, and 
that the House would not have had the right to proceed by address. 
This was done last year. The charges last year were put upon the 
record. They were impeachable charges ; and the House then exam¬ 
ined them, and considered them impeachable charges, and substan¬ 
tially tried Judge Day by impeachment. The modes of procedure 
were not so favorable to Judge Day and the other respondents as 
they would have been by impeachment, but more favorable by far to 
the petitioners ; and because they tried Judge Day last year upon the 
charges of misconduct, proper for impeachment, and only for that, — 
because they tried him at that time, in an informal manner, regardless 
of the forms of law, to the disadvantage of Judere Dav and the re- 
spondents, — the} 7 claim now that they have the right to proceed by 
this mode of address, and claim that Judge Da} 7 has not been ac¬ 
quitted, as he would have been by a court of impeachment had he 
been thus tried ; and then they ask us if we propose to take ad¬ 
vantage of technicalities ! Is that not a technicality? Are they not 
proceeding this year upon a technicality? — after having had the 
charges put upon the record, after having Judge Day brought to 
trial upon those charges? I submit, that, in all fair dealing, the Com¬ 
mittee ought to take the proceedings of last year as a trial of Judge 
Day and as an acquittal. Any other course will be most unjust and 
unfair towards him and these remonstrants. 

Now, with regard to the technicalities. Why, this year, what are 
the petitioners doing? They are coming this year, and presenting 
anew the charges upon which he was acquitted last year. They say 
they hadn’t the right to spread them on the record of the House, 
because, if spread there, they would charge themselves out of court. 
But they claim the right to come before this Committee and spread 
the charge substantially upon the record. They are as substantially 
spread upon the record when they are brought before this Committee 
and put in writing, and in such a form as they are, as it is possible 
for them to be in any other way. When they undertake to do that, 
they are taking advantage of a mere technicality. Will it be claimed 
here for a moment that Judge Day ought to suffer because these peti¬ 
tioners did not see fit to put their charges in the petition, but bring 
them before the Committee, and ask to be heard upon them? I have 
no doubt, Mr. Chairman and gentlemen, that such was the deliberate 
plan on the part of these petitioners. I have no doubt that they 
desired to do that which they knew they were unable to do by a 
direct and straightforward movement, — that they were undertaking 
to do that which they felt they had no right to do under the law, 


92 


HEARING —JOSEPH M. DAY. 


[Feb. 


except by taking advantage of the merest technicality. I supposed 
that this was a matter to be decided upon principles of substantial 
justice, rather than upon technical rules; and to say that no charge is 
made against Judge Day for malfeasance in office, because made 
before this Committee, is not correct. Are these not charges against 
Judge Day? Are they not charges of an impeachable offence? and, if 
found to be true, does not the counsel expect that they will be urged 
before the House as the reasons why he ought to be removed from 
office? If he does not, then they certainly have no place here ; and, 
if he does expect that those considerations will be presented to the 
House, isn’t he then undertaking to take an unfair advantage of 
Judge Day and the respondents? I say this : that the bringing in of 
the charges in the manner in which they are brought before the Com¬ 
mittee,— charges made by the petitioners, and the answers made by 
the respondents and by Judge Day, —whether there is not a record 
made up, and if it is not wholly immaterial whether it is made up in 
the House before the case is sent to the Committee, or whether it is 
made up by the Committee, and by the Committee returned to the 
House in their report? The Committee must, when the} 7 report to 
the House, necessarily state what the charges are, and that they are 
charges of an impeachable nature. They must necessarily state 
the evidence upon which the petitioners undertake to sustain those 
charges; and, if the order of proceeding were reversed, it is only a 
question of the order of proceeding, and nothing more. And, when I 
made the motion that this be referred back to the House, I desired to 
have this go before the House, that the House might see and under¬ 
stand that they are trying precisely the same case that the} 7 tried last 
year, and, more than that, that they have been unfairly dealt with, 
and that it was an imposition on the House for the petitioners to un¬ 
dertake to go into an examination upon such a petition as was put 
in, instead of making to the House the charges which they make here, 
and which, I say again, would have stated themselves out of court. 
All that the remonstrants ask for here is fair dealing; and, if the 
whole judiciary of Massachusetts is to be brought year by year as a 
political game to the bar of the House, why, it is time that that mat¬ 
ter was fully understood. For the counsel has said here, that it is a 
mere legislative action, a matter of expediency and of propriety ; of 
itself not reflecting upon Judge Day, —that he is a man of no partic¬ 
ular importance in this examination ; that it is in the interests of the 
State that the investigation is made, — the will and wish of the State. 
And it was argued that all that is necessary is for the Legislature, Coun¬ 
cil, and the Governor (which are uniformly in harmony with each other, 
and act, not as four co-ordinate branches, but as a unit), if they can 
satisfy the House that it is expedient, satisfy the party in power that 


1882.] 


SENATE—No. 150. 


98 


it is expedient, to remove all the judges, no excuse need be given; 
that it is a matter that does not concern anybody much, but it is 
simply the will of the people, and that is all that will be required. 
See, then, by r this doctrine, what you are throwing into your political 
contests. You have seven judges of the Supreme Judicial Court, you 
have eleven judges of the Superior Court, you have fourteen judges of 
the Probate and Insolvency Court, and then you have that long list of 
judges of district, municipal, and police courts, making, certainly, a 
prize political parties should be allowed to contend for. The doctrine 
which is enunciated here by^ the counsel for the petitioners is, that it 
is fair every year for any petitioners who desire that a change shall be 
made in all the judicial officers of the State to petition for the removal 
of such officers, and that it would be fair for the Senate and the 
House, if they prefer the change, to remove those judges by address. 
Where is the independence of the judiciary when this doctrine 
is established? And it will be brought about, and that, too, at 
no distant day^, if proceedings of this kind are to be sustained. 
If the Senate and the House, instead of trying a judge by impeach¬ 
ment for malfeasance in office, instead of removing a judge by address, 
when he is incapacitated from performing the duties of his office by’ 
some cause not affecting his judicial character, as insanity’ or old age, 
and the doctrine is to be established, that judges may be removed 
without cause other than the will of the Legislature, which is the will 
of a party, where is the independence of the judiciary’? This system 
is inaugurated if you remove Judge Day% not on account of mal¬ 
feasance in office, but simply, as they r claim the right to do, because, 
upon the whole, they think Judge Day had better go, and some other 
man take his place. I submit, again, that this is putting the whole 
question upon the expediency- of the thing, and upon no other ground. 

I wish to say one word more, and that upon the matter of “ con¬ 
venience.” Counsel said that this was a more “convenient” way 
of doing; business. “Convenient” for whom? Not convenient for 
Judge Day, who has been trying to have an opportunity to meet his 
accusers face to face in a trial; not certainly convenient for those 
remonstrants who came here by the hundreds, because they feel that 
their own rights are imperilled, and that Judge Day is being most 
unfairly dealt with, — but it is for the convenience of those who, hav¬ 
ing no legal ground upon which to move, and are unwilling to spread 
upon the record their complaints. The cause for the petition is some¬ 
thing for which the Legislature, I think, has no disposition to punish 
Judge Day for. It is a matter personal with these petitioners to a 
very’ large extent, or to the leading movers for the address, rather than 
any r thing relating to the performance of his official duties. I think 
that I have stated my positions with sufficient clearness, and cer- 


94 


HEARING —JOSEPH M. DAY. 


[Feb. 


tainly I will not take up longer the time of the Committee in general 
considerations. But I must again call the attention of the Commit¬ 
tee to the propriety and the justice of having these proceedings 
reported back to the House and to the Senate with the charges and 
specifications, and to have their direction in reference to the course 
to be pursued hereafter. The positions taken here are, it seems 
to me, so directly opposed to what would be the action and position 
of the parties were the charges brought before the Senate and House; 
and the Senate and House will not deal with this matter differently 
through their Committee than they would deal with it providing 
the charges had been directly made and spread upon the records of 
the Senate and the records of the House. I hardly know what the 
record of the House is. I understand the Journal of the House to be 
little more than the docket of the House ; and I know not how pro¬ 
ceedings are more effectual^ spread upon the records of the Senate 
and the House than when they are spread upon it through reports of 
their committees, and the action had upon those reports. 

Mr. Wadleigh. Mr. Chairman, of course I would not venture to 
reply to any thing which has been said, except so far as it is new. I 
shall only detain the Committee about two minutes. 

The Chairman. Of course, Mr. Wadleigh, you understand that 
the remonstrants, in making these motions and in arguing on these 
preliminaiy answers, have the right to open and close? 

Mr. Wadleigh. Certainly ; but in every case where, in the closing 
argument, new matter is adduced, the court will give counsel on the 
other side an opportunity to comment on that new matter. That 
rule prevails in the courts. 

I want to refer for one moment to one of the quotations made by 
my brother on the other side. On the very matter he refers to, p. 
181, Judge Shaw sa} T s, after sa 3 ’ing what m 3 ’ brother has quoted,—• 

“It is true, that by another course of proceeding, warranted by a different 
provision of the Constitution, any officer may be removed by the Executive, at 
the will and pleasure of a bare majority of the Legislature, — a will which the 
Executive, in most cases, would have little power and inclination to resist. The 
Legislature, without either allegation or proof, has hut to pronounce the sic 
volo, sic jubeo, and the officer is at once deprived of his place, and of all the 
rank, the powers, and emoluments belonging to it.” 

And thus Chief Justice Shaw goes on — 

Mr. Talbot. Be good enough to read what he says on the top of 
the next page. 

Mr. Wadleigh. Yes: he goes on to sa 3 ', that, notwithstanding 
this ma 3 ’ seem arbitraiy and unprecedented, yet that the public good 
sense will take care no one suffers, that no one will be removed by 
address without having been given notice and opportunity to be heard. 


1882.] 


SENATE — No. 150. 


95 


Then, below, he went on to say, that, — 

“So long as such a character is maintained [that is, the character of the 
people of Massachusetts is as it is], no danger need, perhaps, be apprehended 
from the arbitrary course of proceeding, under the provision of the Constitu¬ 
tion to which I have alluded.” 

Now, I will read what m} T brother Talbot wants to hear: — 

“ But, sir, we have never, for a moment, imagined that the proceedings on 
this impeachment could be influenced or affected by that provision. The two 
modes of proceeding are altogether distinct, and, in my humble apprehension, 
were designed to effect totally distinct objects. No, sir: had the House of 
Representatives expected to attain their object by any means short of allega¬ 
tion, proof, and conviction of criminal misconduct, an address, and not an 
impeachment, would have been the course of proceeding adopted by them. 
We readily, therefore, agree that here is no question of expediency, of fitness 
or unfitness, but one of judicial inquiry, of guilt or innocence. We make no 
appeal to the will or discretion, but address ourselves solely to the understand¬ 
ing, the judgment, and the consciences of the judges of this honorable court. 
We also cheerfully accede to the proposition that this is a court of justice, of 
criminal jurisdiction, possessing all the attributes and incidents of such a 
court.” 

That is all I desire to say on that point. In regard to the 
case of Judge Fox, I am led to believe, by an examination of the 
book to which my brother Talbot refers, that the charge of miscon¬ 
duct was made a part of the address ; so that those who voted upon 
it had to declare him guilt}’ or innocent. Now, I did not sa}’, Mr. 
Chairman, that if these petitioners had put into their petition of this 
year the grounds on which they ask that Judge Day be removed, he 
must be impeached. There [holding up printed cop}’ of previous 
arguments] is what I did say. I haven’t revised it. It is immaterial 
whether the petitioners make charges, or not. The distinction is this : 
where the address on which the members of the Legislature are to 
vote makes specific charges of guilt, I think that there should be 
impeachment; but, w T here the address states merely the opinion of 
the Legislature that the removal of the judge will be for the public 
good, there need not be proceedings in impeachment. If this Com¬ 
mittee recommends the removal of Judge Day by address, on the 
ground that the public good requires it, and the address passes by a 
unanimous vote, there will be nothing on record to show that the 
Legislature have found Judge Day guilty of any thing. Why? 
Because the address merely shows it is for the public good that he 
should be removed ; and the members simply vote, that, in their 
opinion, the public good requires that he should be deposed. Now, 
it would be simply impossible to go to the individual members, and 
find the grounds on which they voted. One believes him guilty, 
another says that he ought not to sit as judge with the feeling in the 


96 


HEARING —JOSEPH M. DAY. 


[Feb. 


community that has been shown to exist, and so on ; but there is 
nothing of record to show that the Legislature has found him guilty. 
It shows simpty, that, under all the circumstances, it appears to them 
the public good requires that he should be removed — 

Mr. Thompson. And that the charges made before the Committee 
and acted on by them are to be excluded — is that it ? 

Mr. Wadleigh. The difference between removal by impeachment, 
and removal bj r address without cause being assigned, is this : in 
impeachment the charges are made distinctly and specifically; and 
the Legislature acting upon them sits as a court, and the members of 
that Legislature vote guilty or not guilty on those specific charges. 
They must find him guilty, or not guilty, upon those and nothing 
else; but, in the case of removal by address, they simply vote that 
the public good requires that he should be removed. That is all it 
means; and, as to whatever motives the individual members of the 
Legislature may have had in so voting, those cannot be inquired into, 
and there is no way to show them. That is the difference between 
the two modes. 

Mr. Crowley (of the Committee). That is New Hampshire doc¬ 
trine, Mr. Wadleigh. 

Mr. Wadleigh. It is English doctrine. It is the doctrine of 
Judge Shaw, and it is considered that Judge Shaw is good authority; 
and I ma} 7 saj 7 also, that this right of address has not been abused 
and will not be abused in Massachusetts. There is, then, no occasion 
for this clamor in regard to the right of removal by address. A man 
who holds a life office, who cannot be reached in any other way, who 
has forfeited the confidence and esteem and respect of the community 
whose rights he is to decide, should not hold that office, but should be 
removed. 

Mr. Thompson. This certainly is not in the nature of a reply to 
any thing I have said. 

The Chairman. You rather suggested it by your question, Mr. 
Thompson. 

Mr. Thompson. I know ; but he didn’t make any reply to it. 

Mr. Wadleigh. What was the question? 

Mr. Thompson. I said this : that the charges before the Commit¬ 
tee, and their action thereon, were not to be presumed to have any in¬ 
fluence on the House in their action. 

Mr. Wadleigh. I answered that by saying what I did, and it was 
strictly in reply to what my brother asked. 

Mr. Thayer. Whether or not the House had preferred articles of 
impeachment against a judge who was tried and acquitted by the Sen¬ 
ate, whether another Committee has the right to present the identical 
things with the other evidence they might have? 


1882.] 


SENATE —No. 150. 


97 


Mr. Wadleigh. Bej-ond all question. 

Mr. Thayer. Do you not put him in jeopardy twice for the same 
thing? 

% 

Mr. Wadleigh. No : because the address contains no charges. 
The question is only whether the public good requires that that office 
should be vacated. 

Mr. Crowley. You hold, that one year you have the right to go 
by address to remove him, and, failing, to renew the effort next j’ear 
for removal by impeachment? 

Mr. Wadleigh. Precisel}’. The Legislature has the right to 
entertain such complaints whenever in its discretion it deems that 
the public good requires it. 

Mr. Crowley. So that we may make up our minds that this will 
be repeated } T ear by year, until Judge Day is removed? 

Mr. Wadleigh. I did not say any such thing as that. 

Mr. Crowley. According to your doctrine? 

Mr. Wadleigh. The doctrine of Webster and Judge Shaw. As 
to how often the effort is repeated depends on the good sense of the 
people and Legislature of Massachusetts. 

The Chairman. You simply say it can be repeated, — not neces- 
sarity that it will be. 

Mr. Wadleigh. When Judge Shaw said that the Legislature 
can remove any judicial officer, with reason or without, of course he 
meant that the Legislature can do it one } r ear or another, as it sees fit. 

Mr. Thompson. I understand the position of the counsel to be, 
that if the charges are proved to be false before one Legislature, and 
a verdict rendered to that effect, still those same charges are proper 
matters to be brought up and considered before a succeeding Legisla¬ 
ture, and proof to sustain them ma}^ be adduced, although the allega¬ 
tions are already disproved — 

Mr. Wadleigh. I didn’t sa}" any such thing — 

The Chairman. I don’t think it is necessarvto answer, Mr. Wad- 
leigh. The Committee understand } r ou. I would like to ask the 
counsel if you have considered the question of the motion made by 
Mr. Wadleigh at the close of the last hearing? 

Mr. Thompson. I haven’t the wording of that, sir. 

The Chairman. It is at the end of the report, — p. 80. 

“ Moved, That the evidence of last year be considered by the Committee, so 
far as the same is applicable to the grounds on which Judge Day’s removal is 
now asked, and so far as the same is offered by the counsel on each side.” 

Mr. Thompson. It is as I remembered it, and I have thought upon 
it. I am willing that the record of last year shall go in, — that the 
evidence shall go in, either party having the right to use such part 


98 


HEARING — JOSEPH M. DAY. 


[Feb. 


of it as they may desire, but not to have it used with the possible 
restriction that may be put upon it in the construction of this motion. 
If we accede to that, what is the meaning that ma} r be put upon it, 
Mr. Chairman? 

The Chairman. As I understand the motion, Mr. Thompson, it 
allows either of } r ou to offer any such portion of the printed testimony 
as you may see fit to put in on behalf of your clients. 

Mr. Wadleigh. That is applicable to the charges? 

The Chairman. Certainly. 

Mr. Thompson. I understood it so. Now, I want to set this right 
here, that there may be no misunderstanding about it hereafter. 
They this year allege three cases of intoxication. They allege some 
two or three cases of rudeness in office : they may not use the precise 
term “ rudeness in office.” Instead of alleging, as they 7 did last year 
under their eighth charge, that 

“ He has been guilty of excessive and improper use of intoxicating liquors,” 
and the ninth, —* 

“He has been in the habit of using coarse and harsh language to suitors in his 
court,” — 

Now, as I said, instead of putting in these general charges and 
allegations, they have this year put in the evidence by which they 
undertook to sustain those charges, — specified the particular cases 
in relation to which they offered testimony at the hearing before the 
last General Court. In answer to those two allegations, Judge Day 
brought up here some forty or fifty of the most active and respectable 
men of the county, men most familiar with the business of the county 
and Judge Day’s mode of conducting business, and also most familiar 
with Judge Day personally, and best acquainted with his habits, to 
show, in the first place, that he was a temperate man, — that he was 
not in the habit of using spirituous and intoxicating liquors (certainly 
not the excessive use of them), and to show, in the second place, that 
his general course of conduct to the people having business in that 
court was kind, gentlemanly, and courteous, and perfectly proper; 
that he bore himself as a high-toned judicial officer in his court, and 
in the community as an orderly and temperate citizen. Well, now, 
the plan I understand is one of the most unfair— I don’t know as I 
ought to find any fault with the means by which the counsel undertake 
to conduct their case; of course they do that which they think right 
and proper — but this is for the purpose of excluding all of that evi- 
pence which, we submit, is vital, and which comes in rightfully and 
properly in answer to the charges of excessive use of intoxicating 
liquors, and rudeness and harshness toward suitors. We claim that 
we have the right, in answer to these specific cases, to show that his 


1882.] 


SENATE —No. 150. 


99 


general conduct and bearing was unexceptionable, and that so much 
so as to far outweigh smaller matters, which some may except to 
(and some may not), and testified to by parties who may feel them¬ 
selves aggrieved by language which lie may have used. 

Now, I do not wish to keep any thing out of sight, and I am per¬ 
fectly ready to consent to that. If that is the construction the Com¬ 
mittee may put upon the language, I may be prepared to accept it; 
but I cannot consent to have the case launched in this way, and to 
make an admission which may be construed unfavorably to me before 
I understand definitely what the position is to be on the part of the 
counsel, and have some intimation with regard to what will be the 
construction of such an agreement, were I to consent to it, on the part 
of the Committee. 

The Chairman. It appears to me, Mr. Thompson, that there can¬ 
not be any misunderstanding as to what the motion is. It is drawn 
very clearly ; and I think, from what you yourself just said, it is per¬ 
fectly plain what evidence is to be admitted. I think you can hardly 
call upon the Committee to decide under that motion, in advance, 
whether certain evidence shall be admitted until it is offered. 

Mr. Thompson. Then, most assuredly, I cannot consent, and 
shall be obliged to take the construction of the Committee. I cannot 
consent to the use of the record in any manner or form until I have 
some information or suggestion upon that. I bow most respectfully 
to the decision of the Committee, but I cannot give my consent to 
a course which I can see may do injustice to Judge Day and the 
respondents. 

Mr. Wadleigh. All I can say is, that the motion bears on its 
face evidence of its entire propriety and correctness in principle. 
It must be very clear to Mr. Thompson, and to everybody who thinks 
of the matter for a moment, that evidence of last } T ear which is not 
applicable at all to these charges should not be admitted. I am 
utterly at a loss to conceive how he, or any one else, can understand 
that the evidence of last year should be admitted, when it is not 
applicable to the grounds upon which the petitioners now ask for the 
removal of Judge Day. With these remarks, I leave it with the 
Committee. 

The Chairman. We understand your position to be, then, Mr. 
Thompson, that you decline to consent to the motion, offered by Mr. 
Wadleigh, in respect to the record? 

Mr. Thompson. I do. 

The Chairman. The Committee will retire now for a short time, 
to pass on the various questions raised. I don’t think we shall be 
absent very long. 

Mr. Wadleigh. I want to make another motion, and that is in 


> . > 



100 


HEARING —JOSEPH M. DAY. 


[Feb. 


regard to taking the deposition of David Bursley, who is very old 
and ill. I should like, with the consent of all parties, to have a com¬ 
mittee of three go down, and take his testimony with the short¬ 
hand reporter. 

The Chairman. The opinion of the Committee, as I understand, 
is, that it should be taken in the usual form, and presented as you 
would ordinarily present a deposition to an } 7 court, and the Committee 
shall pass on its admissibility. * 

Mr. Wadleigh. All right. 

Mr. Thompson. I want to make a suggestion here ; and that is, 
before passing on this matter, all should have time to examine the 
arguments of counsel in regard to it. There was only a minority 
of the Committee here on Frida} 7 . Of course, we consented to pro¬ 
ceed in the interest of despatch, but with the express understand¬ 
ing, of course, that the proceedings should be read by the Committee, 
and that no action should be taken until they had the fullest oppor¬ 
tunity, — an opportunity equivalent to being here and hearing. And 
we earnestly urge that these preliminary matters shall not be passed 
upon by the Committee at all, until at least the Committee have 
had time to consider the question, after understanding the positions 
taken by the parties upon the one side and upon the other. 

The Chairman. I would say that the Committee have already 
had these matters under consideration, and discussed them quite 
extensively. As many of the points raised by the counsel were 
very ably argued and presented last year, the line of argument has 
been substantially the same this year; and I understand that all of 
the Committee, to a greater or less extent, examined the arguments 
as presented last year, touching the most important point that we 
are now considering, and that is, our right and duty to proceed by 
address under these specifications. 80 , that while it seems to me 
that the counsel are entitled to the consideration which might come 
from their additional argument of this morning, I do not think that it 
requires any very great delay in order to determine the minds of the 
Committee. I think that the Committee, all of them, have consid¬ 
ered the matter quite fully; and I think we shall be able to announce 
our decision to the counsel this morning, and I should wish the coun¬ 
sel to await the result of our deliberation. If we find we cannot 
agree within a short time, I will notify you, gentlemen, and excuse 
you until such other hearing as may be appointed by the Committee. 

The Committee retired at 11.30 o’clock, and were absent about 
an hour and ten minutes. At the expiration of that time, the mem¬ 
bers having taken their seats again in the Green Room, the hearing 
progressed. 

The Chairman. The Committee have fully considered the various 


t t 
c C < 


1882.] 


SENATE —No. 150. 


101 


matters raised by the motions of the counsel, and have come to the 
following conclusions: — 

DECISIONS OF THE COMMITTEE. 

1. The motion to strike out charge nine (9) of the allegations is 
overruled. 

2. The objections raised by the preliminary answer are also all 
overruled. 

I think that left but one other matter before the Committee, and 
that is the motion offered by 7 Mr. Wadleigh. And the decision of 
the Committee in regard to that is, — 

3. That none of the printed testimony of that report will be 
received in evidence, except by consent of parties. 

We are ready to proceed with the hearing. 

Mr. Wadleigh. I desire to say, Mr. Chairman, that I am en¬ 
gaged before two other committees upon matters where parties are 
pressing for a continuance of hearings ; and, as my health is not 
quite firm, I have been obliged to apply for a counsel to assist me. 
I have persuaded Mr. II. P. Harriman to come into the case with 
me as associate counsel, and desire that a minute may be made of 
that fact. 

The Chairman. Mr. H. P. Harriman’s name may be entered as 
counsel for the petitioners. 

Mr. Wadleigh. I propose to my brother Thompson, that, if he 
desires, the whole book may go in just as it is, and he may 7 have the 
benefit of that which he would not perhaps otherwise get. I suppose 
if counsel consent to the admission of the whole record, the Commit¬ 
tee will be pleased to be relieved from the labor of taking the evi¬ 
dence over again. Brother Thompson say’s he must consider the 
matter, and say what he thinks at the next hearing. I would move, 
Mr. Chairman, that the whole book be received, if the Committee 
please. 

The Chairman. If y’ou will put your proposition in writing, Mr. 
Wadleigh, and the opposite counsel agree to it, the Committee will 
pass upon it. 

Mr. Wadleigh. Well, all right. The counsel on the other side 
say 7 they 7 cannot agree at the present time. Shall we proceed, Mr. 
Chairman, with the witnesses? 

The Chairman. Do I understand that the matter is left open to 
be determined hereafter? 

Mr. Wadleigh. Yes, sir. 

The Chairman. Very well: we will proceed. I would say 7 , that, 
so far as the introduction of any printed evidence is concerned, I 
trust the counsel will agree in regard to that matter. Of course you 


102 


HEARING —JOSEPH M. DAY. 


[Feb. 


can clearly see, as lawyers, that there is no possible rule of evidence 
under which the Committee, if } T ou asked a ruling from them, espe¬ 
cially if either party objects to it, can admit that evidence in this 
case. 

Mr. Wadleigh. I am willing to give the other side time to con¬ 
sider it. My opinion is, that the Committee should accept any evi¬ 
dence that they please. Of course, if they start in this investigation 
with the idea that they are barred by the rules of law — 

The Chairman. I want to say that we do not propose to refuse to 
admit ai:y thing but what would be admissible under the strict rules 
of law; but that this is so clearly outside of all rules for the proper 
and orderly conduct of a cause, that upon objection of either party the 
Committee ought not to admit it. 

Mr. Wadleigh. I trust, Mr. Chairman, that nry brother on the 
other side will accept the last proposition which I made. We have 
a witness who is register of probate, who will testify to certain papers 
and documents; and he, of course, is desirous to return to his office 
as soon as he may. 

The Chairman. I think, Mr. Wadleigh, if you have more than 
one witness here, } T ou had better have them all sworn together, in¬ 
stead of each one separately. 

Five witnesses then accepted the oath administered by the Chair¬ 
man. 

The reporter, W. B. Wright, was also sworn. 


TESTIMONY OF FREEMAN H. LOTIIROP. 

Direct Examination by Mr. Harriman. 

Just before the witness began to testify, Mr. Thompson of counsel 
said, Certainly I ought not interpose any motion to-day; but it is 
now after one o’clock, and I should — 

The Chairman. I should like to proceed until half-past one. 

Mr. Thompson. I had supposed we had done all that could be 
done to-da}\ 

The Chairman. We should like to enable the witness to return 
home. 

Mr. Thompson. These men, I suppose, testify with reference to 
Judge Da}^. It is desired that he may be here. 

Mr. Wadleigh. My brother is mistaken in his conclusion. Mr. 
Lothrop is simply to testify to certain papers which he has, which is 
merely formal proof. 

The Chairman. It makes no difference what he is to testify to. 
If Judge Day had wished to be heard, he ought to be here to-day. 


1882.] 


SENATE — No. 150. 


108 

Q. (By Mr. Harriman of witness.) —Mr. Lolhrop, please exam¬ 
ine tlie probate papers in the case of Joseph C. Lawrence. Are you 
register of probate for the count} 7 of Barnstable? A. —Yes, sir. 

Q • — How long have yon been so? A. —Four months. 

Q-—You will please now examine the papers. Have you the 
original papers in the case of Joseph C. Lawrence? A. — I have, 
sir. 

Q • —Will you please see when there was an administrator appointed 
on that estate? A. —The decree appointing him is on the third day 
of August, 1875. 

Q . •—Who? A. — Ambrose N. Doane. 

Q . — Were there bonds furnished ? A. — Yes, sir. 

Q •—Approved? A .—Approved Aug. 3, 1875: J. M. Day, 
Judge of Probate. 

Q. — Was there any account returned? A. — There was, sir. 

Q. —Please look at that account, schedule u B,” and see whether 
or not there is any payment stated to have been made to J. M. Day. 
A. — “April 10, 1876, paid Joseph M. Day, Esq.,” I think, “for 
legal advice, account J. C. L., $25.” 

Q. —That is all at present of those papers. Will you look at the 
papers in the case of the estate of Levi L. Goodspeed, find when the 
administrator was appointed on that estate, and who it was? A. — 
On the ninth day of December, 1879, Mary M. Goodspeed was ap¬ 
pointed administratrix on the estate of Levi L. Goodspeed. 

Q .—Do you find a bond in said estate? A. — Ido, sir: ap¬ 
proved Dec. 9, 1879. 

Q . —By whom? A. — J. M. Day, Judge of Probate. 

Q. — See whether there was any guardian appointed for Charles F. 
Goodspeed. A. — Joseph P. Whitman was appointed guardian of C. 
F. Goodspeed on the 9th of December, 1879: J. M. Day, Judge of 
Probate. 

Q. — Was there a bond given in that case also? A. — There was, 
sir, approved Dec. 9, 1879, by J. M. Day, Judge of Probate. 

Q. — See if there was an}’ guardian appointed for George Good- 
speed— I forget the middle letter. A. — George M. Goodspeed. 
Mary M. Goodspeed was appointed guardian of George Marston 
Goodspeed on the 9th of December, 1879. 

Q. —Do you know who Mary M. Goodspeed was, what relative of 
the deceased? A. — I do, sir, by reputation : Levi L. Goodspeed’s 
wife. 

Q. —And who were the boys I have named? A. —Sons of Levi 
L. Goodspeed. 

Q. —Look at the case of Edward J. Carroll, and see when the ad¬ 
ministrator was appointed on that estate. A. —Charlotte S. Carroll 


104 


HEARING —JOSEPH M. DAY. 


[Feb. 


— no, sir, excuse me, the executor—Samuel Pitcher was appointed 
administrator on the 10th of August, 1875 : J. M. Day, Judge of Pro¬ 
bate. 

Q. — See if there is a bond in that case. A .—There is, sir, 
approved the same date, Aug. 10, 1875. 

Q. — Any account rendered in that case? A. — There was, sir 
[showing paper to Mr. Harriman]. 

Q. — Look at the papers in the case of Seth T. Nickerson, and see 
when an administrator was appointed there. A. — On the nine¬ 
teenth day of November, 1872. 

Q. — Who was appointed? A. — Eleazer Nickerson. 

Q .—Was there a bond given? A .—There was, sir, and ap¬ 
proved Nov. 19, 1872 : J. M. Da} r , Judge of Probate. 

Q. — See if there was an inventory returned. A. — There was, 
sir, filed Dec. 10, 1872. 

Q. — What is the amount of the real estate, and what of personal? 
A. — Amount of real estate, $4,551.69; amount of personal estate, * 
$2,597.81. 

Q. — See whether there was a representation of insolvenc}^ in that 
case. A .—There was, sir. 

Q. — Who made the representation? A .—Eleazer Nickerson, 
administrator. 

Q .—And who appointed the commissioners? A. — J. M. Day, 
Judge of Probate. 

Q. — Who were appointed? A. — Obed Baker, 2d, and Freeman 
Rogers of Dennis. 

Q. — See whether there was any insolvent commissioner’s report in 
that case. A. —There was, sir. 

Q. — What is the date of it? A. -—Sept. 9, I think, in 1873, was 
brought up before the court, thirty days having expired since the 
return. 

Q. —When was it allowed? A. — Sept. 9, so far as I can make it 
out, —there has been an erasure, — 1873. 

Q. — Please examine that account, and see if there was any sum 
distributed or allowed J. M. Day. 

Mr. Thompson. All these, I suppose, are matters appearing on 
record. There can be copies furnished of them, and the only way is 
to proceed by copies. I certainly object to putting these in as facts. 

I object to their going in except by copies. I do not object to 
any copy; and that, I understand, is the proper way. 

The Chairman. You would hardty claim that the originals were 
not competent? 

Mr. Thompson. Oh, no! but I suppose that they are to be left 
here, and put in — 


1882.] 


SENATE —No. 150. 


105 


The Chairman. I don’t understand that it requires absolutely 
leaving the papers here. I understand that that is putting in the 
original, — as we see it being done now. 

Mr. Thompson. I don’t understand that this is the rule. It is a 
matter in writing; and the writing must be put in, and nothing else 
can be put in but the writing itself, or a cop}\ Of course we have 
made no objection to the original paper or to a copy: certainly we 
want them in. If they are original, we want copies of them. 

Mr. Harriman. We have the originals here, and I offer such parts 
of them as bear on the questions at issue. If the Committee desire 
to have the original papers, they can do so ; but it seems to me it is 
discretionary to ascertain whatever may be required from them. We 
produce them to save the expense of having copies made. It seems 
to me it is a matter which is discretionary with the Committee. They 
are here for the inspection of every member of the Committee. 

The Chairman. For my part, Mr. Thompson, I understood that 
the petitioners really put in these original papers. They are, it seems, 
simpty calling attention to such part of them as they wish the Com¬ 
mittee particularly to consider now. It would be open to you to 
present any other portion of the paper or the record that 3 011 see fit. 

Mr. Thompson. If a paper is put in, I have alwa} T s understood 
that the whole paper goes in for such use as the court desires. I did 
not object to the expedient resorted to for convenience’ sake. That 
wasn’t the point. 

The Chairman. The Committee would insist on the original paper 
being left here, or a copy of it, for examination, if you desire. 

Mr. Thompson. That is satisfactoiy. 

Mr. Harriman. I offered the whole record, and the remonstrants 
are entitled to any thing in it; but I simply called attention to the 
parts that we claim as bearing on the case of the petitioners. 

Q. (By Mr. Harriman.) — Will you please see, Mr. Lothrop, if 
there is any sum allowed to Judge Day there? A .—His name 
appears in this way: J. M. Day, Esq., bill on libel suit, the sum 
claimed, $35 ; and allowed $35. 

Q, —Is there an}' receipt for that sum? Look at the warrant. 
A .—That is the commissioners’ appointment and report, and the 
receipt should be on the distribution to creditors. 

The Chairman. I would suggest, Mr. Harriman, regarding what¬ 
ever papers are testified to by the witness, that he lay them one side, 
so that we may know what papers have been put into the case. 

Witness. Under the distribution ordered and approved Jan. 13, 
1874, appears this item: names of persons to be paid, J. M. Day, 
amount, $35 ; under the head, “ We severally acknowledge the receipt 
of the sums set against our respective names,” —against that item 
of $35 appears “ J. M. Day.” 


106 HEARING —JOSEPH M. DAY. [Feb. 

Q. — Do you know the handwriting? — that it is his? A. — I 
believe it to be. 

Q. —Will 3 t ou look at the papers in the case of Betsey Kelley? 
See when the will was approved in that case. A. —On the fourteenth 
day of January, 1868, the will was approved, and Hiram Nye and 
Bradford L. Crocker appointed executors, and letters testamentary 
granted. 

Q. — See whether there was any bond in that case drawn to 
Bradford L. Crocker. A. —The bond is of Hiram Nye and Brad¬ 
ford L. Crocker, approved Jan. 14, 1868, by J. M. Day, Judge of 
Probate. 

Q. — Do you know whether a cash-docket was kept b}’ Charles 
Thacher, 2d, former register? A. — I can’t positive^* saju 

Mr. Burdett. You needn’t sa} T at all, then. 

Q. (B 3 * Mr. Harriman.) —Have 3*011 the record of the probate 
court in }*our possession? A. — I have, sir. 

Q. — Whether 3*011 found airy cash-docket kept by Charles Thacher, 
2 d, former register? A. — I have not. 

Q. — Do you know the amount he was in arrears, as register of pro¬ 
bate and insolvencj*, to the treasurer of the Commonwealth upon 
insolvent cases ? 

Mr. Thompson objected, saying, “That certainly covers too much 
ground, when he has shown that he hasn’t any information.” 

Q. (By Mr. Harriman.) —Of 3 our own knowledge? Sa 3 * what 
3*011 know. 

Mr. Thompson. If there is am* thing in regard to that matter, 

it must appear of record in that court. The cases must be put upon 

the docket, and the amount paid in each case put upon the docket. 

That would certainly be the best testimom*, and the 011 I 3 * testimon 3 * 

that ought to be relied on. If aii 3 * such entry is made, there must 

be an entry of the cases ; and this examination of each particular 

case will show the amount he must necessarilv have received. 

&/ 

The Chairman. It doesn’t appear but what this witness has made 
just such an examination. 

Mr. Thompson. Then we are entitled to the record, and not an 
abstract ly him. 

The Chairman. He sa3*s there isn’t any record. 

Mr. Thompson. I understand the witness to say that he had 
searched in the records of probate and insolvency, and didn’t find 
a cash-docket, and not to say that he hadn’t found a docket of 
insolvency proceedings. 

Witness. I think I said I didn’t find the casli-docket kept by the 
former register. There is a cash-docket now on record kept b 3 * me. 

Mr. Thompson. That is a different matter. The cash-docket 


1882.] 


SENATE —No. 150. 


107 


kept by him, unless lie was in the office, and charged with the per¬ 
formance of that duty, is of no avail; but one kept by him while 
charged with the duties of register, would be one kept by the regis¬ 
ter ; but if the witness was not charged with that duty, and made 
minutes in an unofficial way, on his own account, then it is not such 
testimony as ought to be presented to prove a fact which is put in 
issue, because it should appear of record what the cases are. 

Mr. Harriman. May it please the Committee, the statutes of 
this Commonwealth require the registers of probate and insolvency 
in each count}' to keep a cash-docket containing the amount they 
receive from insolvent debtors on the filing of insolvent petitions ; 
and that amount the debtor pays to the treasurer of the Common¬ 
wealth, which he, by law, is called upon to do, namely, under the 
direction of the judge of probate and insolvency, whose duty is 
defined by the statute. Now, I wish to go further, and ask this wit¬ 
ness whether he knows the amount collected for the long time during 
which the former register had made no returns to the treasurer of 
the Commonwealth, and the amount he was in arrears. 

Mr. Thompson objected to Mr. Harriman’s proposed question ; and 
a lengthy discussion between Messrs. Thompson and Wadleigh and 
the Chairman ensued, the result being the admission of the question 
as presented. 

Mr. Crowley. What is the question, Mr. Chairman? 

Q. (By Mr. Harriman.) —Did you have any conversation with 
Judge Day with reference to the amount of arrears that the former 
register of probate was in to the Commonwealth? A. — I have. 

Q. — And did you receive any sum of money with which to supply 
this amount? A. — I received a sum of money through Judge Day. 

Mr. Thompson objected. 

Q. — Did you receive it? that is the question. A. — I did 
receive it. 

Q. —What was the amount of that money? A. —It was a little 
over three hundred dollars. I could not positively say just how much. 
I commenced the cash-docket as register of probate and insolvency 
with.that sum. 

Q. — Was there any portion of that sum remitted by you to the 
treasurer of the State? A. —\es, sir. 

Q._How much? A. —About two hundred dollars. It must 

have been nearly two hundred dollars that I remitted to the treas¬ 
urer. I should say from a hundred and fifty dollars to two hundred 
dollars. 

Q. — Do you know whether or not Judge Day made any examina¬ 
tion to find whether he was in arrears ? 

Q. (By Mr. Thompson.) —Who was in arrears? 


108 


HEARING —JOSEPH M. DAY. 


[Feb. 


A. —I don’t know that he did. 

Q. —Did he tell yon that he had any interview with Thacher with 
regard to it? A. — I think I heard him say that he had an inter¬ 
view, and I think had written with regard to it, or asked some one 
to go to the State House and see what had-been returned. 

Q. — Did he say any thing to }’ou that he had been down and had 
seen Thacher? 

Mr. Burdett objected. 

Q. — Whether or not he said that he had ever seen the former 
register ? 

Objected to by Mr. Burdett, and question allowed. 

Witness. I am unable to state positively whether he had seen 
him on that subject at the time. He told me that he had seen Mr. 
Thacher ; but that he told me that he had seen him upon that subject, 
I am unable to say. 

Q. — At any time, did he tell 3 T ou? A. —I cannot be positive. 
There were so many new things brought to my notice at that time, 
and I knew that he had seen or written about so many affairs, that 
I am unable to state that he had seen him on that subject. 

Q. — Do 3 ’ou know when the last return was made by Mr. Thacher 
to the treasurer of the Commonwealth? 

Mr. Thompson objected, and question put in another form. 

Q. —From what Judge Da 3 ' told 3 ’ou? A. — I don’t think Judge 
Day fixed the date. Thacher sent him papers, showing what he was 
owing to the Commonwealth, which papers I have, and from which I 
made m 3 T return to the treasurer. 

Q. — Do you know whence Judge Day obtained his information of 
the sum paid over by 3 T ou? A. — I think from Mr. Thacher. 

Adjourned to Thursda 3 r , March 2, at 10 a.m, at Room 14. 


1882.] 


SENATE —No. 150. 


109 


FIFTH HEARING. 


Room 14, State House, Boston, 
March 2, 1882. 

The Committee was called to order at 10.20 a.m. by the Chair¬ 
man, Senator Jennings. 

Mr. Wadleigh. Gentlemen of the Committee, brother Thomp¬ 
son informs me that the record of last year may, with the assent of 
both parties, go in. That will save a great deal of time. 

The Chairman. Do the counsel for the remonstrants consent to 
that? 

Mr. Thompson. Yes. 

The agreement between counsel providing for the admission of 
“the record of 1881, as embodied in the report of the joint special 
committee ” (Senate Document No. 200), was then read and accepted 
by counsel and the Committee. 

Mr. Wadleigh. AVe desire, Mr. Chairman, to offer an amend¬ 
ment embracing a matter which has come to the knowledge of the 
counsel for the petitioners since the last meeting of the Committee. 

The Chairman. I should like to say that the Committee will not 
pass finally upon this agreement between counsel at present. 

Mr. Wadleigh. This new matter, Mr. Chairman, comes in as an 
amendment to the specification under section one, of the grounds 
upon which the removal of Judge Joseph M. Day is asked ; and it is 
this: — 

“ 13. In the case of Varanus B. Nickerson v. Edward E. Crowell et als., in 
the Superior Court for the county of Barnstable, during the years 1807, 1868, 
1869, and 1870, which suit or matter depended upon and related to certain 
decrees and orders made and passed by him as judge of the court of insolvency 
in the case of Varanus B. Nickerson.” 

That is a matter of record : there is no evidence, I think, but the 
record itself. 

Mr. Thompson. AVe respectfully object to that, because we desire 
at some time to know on what specifications this case is to pro¬ 
ceed : and they have had now twenty-one years, and it is a year and 
a half nearly, since these proceedings were begun on the part of the 
petitioners ; and we think certainly that they ought not to be allowed 
any’ further time with reference to their specifications. The remon¬ 
strants certainly think they are entitled to have the case proceed 
upon the specifications already in. This is the fourth day of the 


110 


HEARING—JOSEPH M. DAY. 


[March, 


hearing; and if this is to be admitted, perhaps to-morrow, or the day 
after, or the next da}’, additional specifications may be presented. 

Mr. Wadleigh. Mr. Chairman, this is a new charge. 

Mr. Thompson. Then my objection is still stronger. 

Mr. Wadleigh. Mr. Chairman, the allegation in this new charge 
is, that Judge Day acted in violation of a statute, —that Judge Day 
appeared as counsel in a suit and matter depending upon a decree 
of his own as judge of insolvency. The facts will be shown by the 
record. There are no witnesses. It cannot be any surprise, or any 
great hardship upon Judge Day, to be required to explain the reasons 
which induced him to violate that statute, or to show why he did not. 

Mr. Thompson. That certainly does not make any specification 
even, by which we are advised of its nature and character in any 
particular; and all of the specifications, I understand, and the alle¬ 
gation itself, are made under the statute that he has referred to, Mr. 
Chairman. 

Mr. IIarriman. I will state just what this case is. 

The Chairman. Wait a moment, please. It seems to me that it 
is not a question of what it is, but rather the question whether the 
Committee will receive any amendment to the specifications ; and, if 
so, whether this amendment is seasonablv offered. 

Mr. Wadleigh. Allow me to state, Mr. Chairman, referring to 
last year, that no specific charges were required to be made under 
the general charges, unless the several matters included in those 
specific charges occurred more than six years before ; and, under the 
general rule adopted last year, this would come in as a matter of 
course; i.e., we could introduce the evidence without any specific 
charge at all. 

Mr. Thompson. That was under a general charge ; but they have 
left that, and taken a wholly different ground : and that rule is not in 
any degree applicable to the proceedings this year. 

Mr. Talbot. It is not at all this year. 

Mr. Hill (of the Committee). This comes under the general 
charge, Specification 1, and is merely an additional charge and speci¬ 
fication. 

Mr. Thompson. The Committee will remember that I spoke as 
regards that general allegation ; and the counsel for the petitioners 
here said that no testimony would be offered except under the specifi¬ 
cations, and that was merely a general statement, a matter not relied 
upon. 

Mr. Wadleigh. If the Committee will turn to the first remarks 
I made, they will find I then expressly stated that I desired leave, if 
new matters came to our knowledge at any'time during the hearing, 
to introduce evidence of them; and I never have said any thing to 
the contrary. 


1882.] 


SENATE —No. 150. 


Ill 


Mr. Thompson. That doesn’t make it any more competent, reg¬ 
ular, or fair. 

The Chairman. It seems to me, Mr. Wadleigh, that the amend¬ 
ment is seasonably offered ; and, unless a majority of the Committee 
think differently, I shall admit it. 

On suggestion of Mr. Thayer, the Committee retired for consulta¬ 
tion. 

Twenty minutes elapsed before the Committee returned. 

The Chairman. The Committee have voted to sustain the ruling 
of the Chair, and the new specification is allowed. You will proceed 
with the evidence, gentlemen. 

Mr. Harriman. Mr. Chairman, Mr. Lothrop, who was upon the 
stand when the Committee adjourned, has returned home, as his 

office was left vacant. I understand mv brother on the other side 

*/ * 

desired to cross-examine him, and we will have him here before the 
case is over. We shall have to vary the order of testimony there¬ 
fore, and put on some other of the witnesses sworn on Tuesday. 

Mr. Burdett. I can onl} 7 sa} 7 , that the counsel for the remon¬ 
strants regret that this has happened. Mr. Lothrop was under exam¬ 
ination when the Committee adjourned, and his direct examination 
wasn’t finished. It would seem to be of some importance to have 
the record evidence put in first, as upon that the charges must be 
founded. I have consulted with others as to the points upon which 
he testified, and I am ready to cross-examine Mr. Lothrop when he 
appears ; and I also desire to examine him in relation to the $300 
check that he testified to. I must say I am surprised that he is not 
here, as he ought to be. It puts us to inconvenience, and in the 
order of testimony may work to our disadvantage. I want that rec¬ 
ord evidence published first. Perhaps, if the topics of those papers Mr. 
Lothrop testified about be furnished me, 1 may make some statements 
from them which will set the matter right under the circumstances, 
and we can go forward somewhat intelligently. 

The Chairman. We regret that the register is not here, but think 
we may proceed with what testimony we have, to save the time of the 
Committee. 

Mr. Wadleigh. Let me call the attention of the Committee to 
the twelfth specification under the general charge. In the case of 
Isaiah Gifford, the date “ 1877 ” should be inserted where the blank 
space is ; and the other blank in the same specification should be oc¬ 
cupied with the name Mary Stid. 

Mr. Burdett [having looked over the papers about which Mr. 
Lothrop testified]. I don’t see that these papers help us very ma¬ 
terials, seeing that there are certificates of two cases only; and I 
understood Mr. Lothrop to read off the record of quite a number of 
cases. 1 have the cases of Seth Nickerson and Joseph C. Lawrence. 


112 


HEARING —JOSEPH M. DAY. [March, 


The Chairman. I think we will not wait any longer. Of course 
I understand that it is embarrassing to have the witness absent under 
these circumstances, but we may proceed with those that are present. 

Mr. Burdett. Are you aware, Mr. Chairman, that five of these 
cases were put into my hands within a minute by Mr. South worth, 
and that I have as yet had time to examine the contents of only two 
out of the seven envelopes handed me? I was about to make my 
objection clear — 

The Chairman. Proceed with the evidence. 

Mr. IIarriman. Call Charles H. Nye, Isaiah Gifford, Clarissa 
Nickerson, and Noble P. Swift. 

[The above witnesses appeared, and were sworn by the Chairman.] 


CHARLES H. NYE. Sworn. 

Direct Examination by Mr. IIarriman. 

Q. — Your name is Charles H. Nye? A. —l r es, sir. 

Q. — What position do you hold now? A .—Assistant superin¬ 
tendent on the Cape Cod division of the Old Colony Railroad. 

Q. — And how long have you acted in that position? A. — Sev¬ 
eral years : I don’t know just the time. 

Q. — Previous to that, what capacity were you in? A. —On the 
road ? 

Q. — Yes, sir. A .—I have been conductor, paymaster, “su¬ 
per’s” clerk, and in several other positions: I don’t know the titles 
of them. 

Q. — Do you know Judge Joseph M. Da} 7 ? A. —I think I do. 

Q. — How many years have you known him ? A. — I should judge 
twenty-four. 

Q. — Whether or not you saw him two or three years ago, in the 
vicinity of the station at Cohasset Narrows, on the train? A .—I 
have seen him a great many times at different places. I saw him at 
Blizzard’s Bay, Cohasset Narrows, —now called Buzzard’s Bay. 

Q. — How long ago was that? A .—I should judge it was two 
years ago. 

Q. — Did you notice any thing peculiar in his condition at that 
time? If so, state what it was. A .—1 saw him one night as the 
train came in from Boston, or about the time the train came in from 
the Cape ; and I think — 

Mr. Burdett. No matter what you thought. 

Q. (By Mr. IIarriman.) — Express what he did. 

Mr. Burdett. What this witness saw and what he thinks he saw 
may be different things. What he thinks is not competent. That’s 
the whole of that objection. 


1882.] 


SENATE— No. 150. 


113 


Q. (By Mr. Harriman.) — State what his condition was. 

Mr. Thompson. I object. [Allowed.] 

Q. (B}’ Mr. Harriman.) —State wdiat his condition was. A .— 
He was able to be about on the platform. 

Q . — Any thing more? A. — I think there was. 

Q. — State what his condition was. 

Mr. Thompson. Let him state what he saw. 

A. — He appeared to have been taking something. By appear¬ 
ances he had been taking; something;. 

o o 

Q. — What do mean by that “ something ” ? A. — Something that 
was exhilarating. 

Q. —Please repeat, so that the gentlemen can all hear. A. — It 
was m 3 ’ opinion — 

Mr. Thompson. I object. Ask him to describe what he saw : the 
Committee are to judge from what he saw, as to his condition. 

The Chairman. The witness is an intelligent man, and he ought 
to know that he is to state what he heard said, and what he saw him 
do, not what the witness’s opinion is, or what he thinks. A. —I 
saw him only on the platform. I heard him say nothing, nor did I 
speak to him. 

Q. (By the Chairman.) —What was his condition? 

Q. (By Mr. Wadleigh.) —Was he, or not, intoxicated — 

Mr. Thompson. I object. 

Mr. Wadleigh. You didn’t hear it through. 

Mr. Thompson. I heard you start wrong — 

The Chairman. Wait a moment. 

Q. (By Mr. Harriman.) —Please answer the question of the 
Chairman. A. — How far does that extend, to be intoxicated? 

Q. (By Mr. Harriman.) —By answering the question that the 
Chairman put to you, as well as you can, you will satisfy the Com¬ 
mittee. State his condition, whether or not he — 

Mr. Thompson (to Mr. Harriman). You have no right to say 
what he did. 

Mr. Wadleigh. Supposing he didn’t do any thing at all, and the 
witness knew, from his looks, that he was intoxicated? 

Mr. Thompson. lie can describe his looks. 

The Chairman. We have asked the witness what his condition 
w r as. As an intelligent man, I should think that he was able to state 
what his condition was. 

Q. (By Mr. Harriman.) —Please answer the question. A. — lie 
was under the influence of something; but I don’t know whether ex¬ 
citement from some political debate, or influence of liquor, or some¬ 
thing else. 

£.__^ow, Mr. Chairman, that is done, I wish to ask this ques- 



114 


HEARING —JOSEPH M. DAY. [March, 


tion, whether or not, from what you saw of Judge Day at that time, 
he was intoxicated ? 

Mr. Thompson. I object to that. He says he can’t tell what he 
was excited by. That is a leading question wholly improper after 
the witness has said what he has. 

Mr. Wadleigh. The witness might state whether or not, in his 
opinion, Judge Day was intoxicated at that time. 

Mr. Thompson. He has just said he didn’t know the cause of his 
excitement. 

Mr. Wadleigh. The appearance of a person w T ho is under the 
influence of liquor — 

Mr. Thompson. Under intoxication. 

Mr. Wadleigh. Under intoxication — and, if } T ou will allow me, 
I say the appearance of a man under intoxication may indicate with 
entire clearness what his condition is, and yet the observer not be 
able to specify it in language: it depends upon a manner that is 
indescribable. 

Mr. Thompson. He states distinctly that he was excited, and 
from what cause he doesn’t know. 

Mr. Wadleigh. I undertake to say, that, under the decision of the 
courts of this Commonwealth, the opinions of witnesses as to sick¬ 
ness or intoxication are admissible. 

Mr. Thompson. He hasn’t said any thing about that at all. 

Mr. Wadleigh. He hasn’t been allowed to say. I undertake to 
say that the clear rule of law in this State is, that a witness may 
say whether in his opinion the party was intoxicated or sick, judging 
from his appearance, for the reason that that appearance may consist 
of a hundred things which the witness cannot specif} 7 or describe, but 
which leave on his mind an impression of absolute certainty as to his 
condition. But when the witness is asked what particular things made 
that impression on his mind, he cannot do it. For instance, if I met 
a man that had some resemblance to brother Thompson on the street, 
I may testify it is my opinion that he wasn’t brother Thompson. I 
am asked: Was his nose like brother Thompson’s? Was his hair 
like brother Thompson’s? Was his mustache like brother Thomp¬ 
son’s? And perhaps I cannot answer these specific questions. I 
cannot go on and describe him, and sa} 7 from such description 
whether it was not brother Thompson. So with intoxication. No¬ 
body can exactly describe the condition of the person seen, and 
the rule of law is as I have stated it. 

The Chairman. It seems to me — 

Mr. Thompson. The rule is settled in regard to that — 

The Chairman. I don’t think the Committee care to hear any 
further discussion on that question. I do not think the question in 


1882.] 


SENATE —No. 150. 


115 


its present form is admissible; and I would like to sa}* to the witness 
that the Committee desire him to state how Judge Day acted, what 
he did. 

Witness. He acted like one under the influence of liquor. 

The Chairman. I am very glad to receive an answer, sir. 

Q. (By Mr. IIarriman.) —Did 3*011 know where Judge Da}' was 
going at that time? A. — I couldn’t say. 

Q • — Do 3*ou know which way he went: whether he came down on 
the Cape train, or went on the Wood’s Holl train? A. —I couldn’t 
say. 

Q .—Which train did }*ou take? A. —I took the train for the 
Cape. 

Q. — Whether, or not, } T ou saw him on that train on } r our wa} r 
down? A. —I think I did not. 

Q. —What time in the year was this? A. —I cannot tell. 

Q. — What time of the day? A. —I cannot tell. I cannot tell 
the train, the month, or the 3*ear. I should judge it was about two 
3’ears ago, on the evening train. 

Cross-Examination . 

Q. (B} r Mr. Burdett.) —Mr. Nye, on the evening train going in 
what direction? A. —Well, it is a junction of the road. There is 
one road running to Wood’s Holl, and another to the Cape. 

Q .— Which train was this? A. — I saw him on the platform at 
Buzzard’s Bay. 

Q. — On which train? A. —On the evening train from Boston to 
the Cape. 

Q. — Is that the train that goes to Falmouth? A. —Yes, sir: 
one of them does. 

Q. — I am speaking now with reference to the train on which 3*011 
saw Judge Da} r . A. —I saw him on the platform of the depot. 

Q. — I thought 3*011 meant platform of the cars. You are unable 
to sa}* which train he took? A. — I am. 

Q. —You went on the train to the Cape, and passed through Fal¬ 
mouth? A. — No, sir: I went on the train down the Cape. Fal¬ 
mouth is on the branch. 

Q .— What part of the platform was he on at that time? A .— 
Between the two branches of the railroad, on the platform which is 
shaped like a heater. 

Q .— I would like to understand somewhat more accuratel}'about 
the size and shape of the platform. Can you give me any idea? 
A. — Yes, b}* estimate. 

Q .— What is the shape of it? A. — I should judge it was sixty 
foot broad at the depot, running off to a point. 


116 


HEARING —JOSEPH M. DAY. [March, 


Q. — In the shape of a triangle? A. —Yes, sir. 

Q .—Now, that we may understand the matter, let us put the 
question in this way: The road coming from Boston splits at Buz¬ 
zard’s Bay, doesn’t it? A. —Yes, sir. 

Q. — The Falmouth Branch runs off diagonally? A. —Yes, sir. 

Q. — And the other branch keeps straight ahead? A. —Yes, sir. 

Q .—That makes the point of the triangle nearest to Boston? 
A. — Yes, sir. 

Q. —And the depot sets on the broad end of the platform? at the 
other end of it, doesn’t it? A. — There is a platform all around the 
depot. It doesn’t set at the other end, but inside the triangle. 

Q. (By Mr. Talbot.) —It sets at the base of the triangle? A. — 
Yes, sir, at the base of the triangle. 

Q. (By Mr. Bukdett.) —Now, was it on the junction side, or the 
opposite side, that you met Judge Da} 7 ? A. — I cannot say. 

Q. — You are unable to say in what portion? A. —Yes, sir. 

Q. —Do you know whether it was nearer the Falmouth or the Cape 
track? A. —I couldn’t say. 

Q. — Do you know whether it was near the junction of the roads, 
or at the other extremity? A. — I couldn’t say, sir. 

Q .—You are unable to give any idea, except that he was there? 
A. — I was there, and he was there. 

Q .—Where were you on the platform? A. —I couldn’t say 
where I was. I was brought there. I walked down to the rear end, 
and took the Hvannis car. 

Q. — That is, near the junction ? A. —Yes, sir. 

Q .—What time in the day or night does the evening train that 
you speak of arrive at Buzzard’s Bay, and there separate into two 
trains, going off in the direction of Falmouth and the Cape? A. — 
At different seasons it gets there at different hours. It doesn’t vary 
a great deal from six o’clock, and from fifteen to thirty minutes. 

Q. — What do you mean? — doesn’t vary much from quarter-past 
to half-past, the evening train? A. —Yes, sir. 

Q. — Supposing this was in the fall, or early part of winter, after 
the Vineyard travel had mainly ceased, what would be the time of the 
train arriving at this junction? A. — Will you allow me to look at 
my time-table ? 

Q. —You may use it, if you have one that will announce the time 
two years ago. A. —I can give it in a very few minutes. 

Q. —Very well. A. —About 6.15, sir, as near as I can give it to 
you. 

A .—Would that be true of the month of October? A. — I can¬ 
not say whether we changed our trains before that time, — before 
October: I think we did. It would be about the time for the 


1882.] 


SENATE —No. 150. 


117 


month of October ; and I don’t know but it would be during the year, 
as our train leaves Boston about four o’clock. The only difference 
would be the winter time: we take a little more time in the winter, 
on m} T division, to reach Buzzard’s Bay than in the summer. 

Q .—Then the train would not leave Buzzard’s Bay earlier than 
6.15 ; and, if not earlier, it left later? A. — It is very near 6.15. 

Q. — I was asking — 

The Chairman. It seems to me that question is hardly necessary. 

Mr. Burdett. I wanted to see if the train left at an} r other time. 
I want to ask this witness if it ever left Buzzard’s Bay earlier than 

6.15. 

A. — I think it has varied from twelve to seventeen minutes past 
six, and I don’t know but twenty minutes past, in some years. I 
cannot say how it was that year. 

Q. — Who else did you see on the platform at that time ? do }'Ou 
remember? A. —No, sir : I could not name a single person, — no, 
sir, I could not name any one. There were anywhere from thirty to a 
hundred passengers there. 

Q. — How did you happen to be there? A. — My r business called 
me, and I happened to be at the junction. I don’t know whether I 
went down there from Boston, New Bedford, or Middleborough. I 
went there, and waited for my train. 

Q. — Do you know how long you had been there at the time you 
saw Judge Da} r ? A. —I don’t know, sir. 

Q. — I understood }'ou to say that you didn’t hear Judge Day say 
any thing? A. — No, sir. 

Q .—And you didn’t say any thing to him? A. —No, sir, I 
didn’t. 

Q. — Did you see him speak to anybody but yourself, or see anj*- 
bod}' but yourself speak to him? A. —I did not. 

Q. — Will you please tell us something that he did, —some act? 
A. — I didn’t see him do any thing. 

Q. — Was he standing — A. — He was walking on the platform, 
I don’t know which wa}\ 

Q. — That is the onlj T act 3^011 can describe, is it? A. — Yes, sir. 

Q. — Did 3 'ou see him get aboard the train ? A. — I did not. 

Q. — How long did you see Judge Da} r on the platform? A. — A 
very short time ; perhaps while I was passing him. 

Q, — Mr. Nye, if 3*011 didn’t come down from Boston on that even¬ 
ing train, 3*011 ’were about the neighborhood of the depot at Buzzard’s 
Bay substantial^ all the afternoon, were you not? A. — No, sir. 

Q .—Why not? A .—I don’t think I was, or could have been. 
I am not very fond of waiting at the junction, so I must have been 
somewhere else. If I came from Wood’s IIoll, I should have rode up 


118 


HEARING — JOSEPH M. DAY. [March, 


the road and come down on the train on my way home to Buzzard’s 
Ba}’; and I should have got out on to the platform to show mj'self, 
and £0 into the car at the rear. 

Q. — And that is all you did in this case ? A. — I cannot say 
where I was that day. 

Q. — You have no recollection of going anywhere else? A. —No, 
sir, I haven’t any recollection of any thing else. 

Q .—I believe 3*011 stated, — you didn’t sa} r whether or not the 
judge got on anj^ train? A. —I didn’t see him get on to either 
train. 

Q .—Which train leaves first, the Falmouth or Cape Cod? A. — 
Sometimes one and sometimes the other, and often both together. 

Q. — IIow nearly can 3*011 fix the time of the 3 *ear, if at all ? A. — 
I can’t fix it, sir. 

Q .—Are you prepared to sa 3 7 that it was in the middle of winter 
or summer? A. — I should think it was either fall or spring. 

Q .—What was the weather? do 3 *ou remember? A. —I could 
not sa 3 \ 

Q. — Whether cold or warm? A. — I could not sa 3 7 . 

Q .—Are 3*011 prepared to sa 3 r it was not in October? A. — I 
could not say but it w*as in October. 

Q. —How far off did 3*011 pass Judge Da 3 T when 3*011 went b 3 * him? 
A. —I could not sa 3 r ; but it was close to him. 

Q. — Was he going in the same direction or opposite from what 
3*011 were? A. — I think in the opposite direction. 

Q. — Did you come to the conclusion that he w r as exhilarated from 
the manner of his walk— A. —And looks? 

Q. — Walk and looks? A. —Yes, sir. 

Q. (B 3 ^ Mr. Hill.)—Y ou include both, Mr. Witness? A. — 
Walk and looks. 

Q. (By Mr. Burdett.)—W hat did 3*011 notice in his looks? A. 
— He was flushed in the face. 

Q. — His face was flushed; and this, Mr. Nye, you saw in the 
neighborhood of half-past six, in the month of October? A .—I 
could not say when it was. 

Q. — It was in the fall or spring, in the month of October, at half¬ 
past six? What do you say to that? A. —I do not sa 3 * when it 
was. 

Q. —Wasn’t it 6.30? A. —It might, and it might not. 

Q. —Was there any other symptom which you want to describe, 
showing Judge Day’s exhilaration? A. —I don’t think of any thing, 
sir. 

Q. (B 3 ’ the Chairman.) —You drew this conclusion from his man¬ 
ner of walking. How did he walk? A. — Well, sir, he walked well 
enough. 


1882.] 


SENATE —No. 150. 


119 


Q. —That wasn’t the question I asked }t>u. I asked you how he 
walked? A .—There was no reel or staler to it: he walked di- 
rectly on. I saw a different movement to the man than that of Judge 
Day. I thought there was something the matter, and that’s the con¬ 
clusion I came to. 

Q. (By Mr. Burdett.) — Are you aware or not that during 
Judge Da}’’s service in the war he contracted a disease of the legs 
that has troubled him ever since, and that now he walks with a heavy 
cane? A. —No, sir, I wasn’t aware of it. 

Q .—Do you know whether or not he usually walks with a cane? 
A. —I have seen him frequently with one. 

Q. — Have you ever seen him without it?* A. — I could not say. 

Q. — Then you are not able to say any thing of your own knowl¬ 
edge, any thing about what his physical condition was at that time, 
or general^, can }'OU? Did he have a cane that night? A .—I 
could not sa}’, sir; but I should judge that he always carries a cane. 

Q. — A cane would be as visible as a flushed face at half-past six 
o’clock of an evening in October, wouldn’t it? But never mind : we 
will leave that. Have 3 ’ou talked this matter over with Mr. Messer 
since the last investigation? A. —No, sir. 

Q. — You knew what his testimoir^ was, didn’t 3 'ou? A. — I could 
not sa 3 T I do. 

Q. (B 3 " the Chairman.) —Was it dark at this time, Mr. Witness, 
when you saw Judge Day on the platform? A. — No, sir : it was be¬ 
fore dark. 

Q. (By Mr. Burdett.) —Was he walking quickly or slowly ? A. 

— I could not sa 3 T . 

Q. —Did he take the train that you took? A. —I could not say. 

Q .—Did you see him on that train on the way down home? A. 

— I don’t think that I did. 

Q. — Did you pass through that train ? A. — Did I ? 

Q. —Yes. A. — I could not tell you. 

Q. — Well, then, to sum it all up, Mr. Nye, let me ask you whether 
or not the only thing that you remember about this time and occur¬ 
rence is, that you saw Judge Day on that platform with a flushed face? 
Isn’t that the sum and substance of all you remember on that occa¬ 
sion? A . —That is about all of it. 

Q. (By the Chairman.) —Do you wish this Committee to under¬ 
stand, Mr. Witness, that you formed the opinion that he was under 
the influence of liquor because his face was flushed, and for no other 
reason? A. — And general appearance, general motion, general 
walk. As soon as I met the judge, I formed the opinion that he had 
been calling on friends: that is all about it. And I think I made the 
remark — 


120 


HEARING — JOSEPH M. DAY. [March, 


Mr. Thompson. I object to that. 

The Chairman. One moment, Mr. Witness. Had 3*011 seen him 
in similar condition before? A. —I don’t know that I have, sir. 

Q. — How, then, did you judge on this occasion? A .—That is 
the opinion that I formed at the time. 

Q. (B} t Mr. Burdett.)— Whether the witness wasn’t interested 
in the cause of the Evangelical Society when Judge Day— Well, 
no matter. 

Mr. Wad leigh. We are all interested in that societ} T . 


MRS. CLARISSA NICKERSON. Sworn. 

Direct Examination by Mr. Harriman. 

Q. —Your name is Clarissa Nickerson, is it? A. —Y^es, sir. 

Q. — You are the widow of Heniy Nickerson? A. — Yes, sir. 

Q .—Whether or not you called at the probate office Barnstable in 
at any time after your husband died? A. —I called there several 
times. 

Q. —At any of those times did 3*011 see Judge Day there? A. — 
Y r es, sir. 

Q. — At any of those times did you have any conversation with 
him about the settlement of your husband’s estate? A. —I carried 
the will to him to have it proved. 

Q. —What took place between 3*ou, whether he said any thing to 
you, or you to him? A. —What he said to me? 

Air. Thompson. If this was not on “court-day,” it is not at all 
competent. 

Witness. Air. Higgins went with me, — Jonathan Higgins, — and 
I expected him here to-da3 r . 

Air. Thompson. I don’t know that the probate court is in session 
all the time. There are regular “court-da3 T s it is so in our county, 
at all events. 

Witness. It was “ court-day ” when I went. 

Q. (B3* Air. Harriman.) — State what talk 3x111 had, and what took 
place, what happened to 3*011, or aii3* thing else 3*011 can. 

[The witness almost fainted at this point, but recovered somewhat 
upon taking a glass of water.] 

Q. (By Air. Harriman.) —Well, now, Airs. Nickerson, as soon as 
3*011 feel well enough, will 3*011 please state to the Chairman just what 
took place? 

Air. Thompson. It seems cruel to her to go on when Jonathan 
Higgins knew all the facts. It is not right to bring in a woman in 
her condition to testify here. 


1882.] 


SENATE —No. 150. 


121 


Mr. Harriman. I never knew that Jonathan Higgins knew all the 
facts. 

Witness. He was the one that settled m} r estate ; and every time 
I went — the last time I went was to settle—[here the witness’s 
voice became inaudible, and she appeared to be very faint] —I could 
not tell how many times I went. 

Q • — Now, at any of those interviews at the probate court, did 
Judge Day sa} T any thing to you harshly or rudely? 

Mr. Thompson. I object, decidedly, to his instructing the witness. 

The Witness. I don’t recollect what he said. 

Q. — How did he speak to you ? A. — Rather harsh. 

Q. (Ity the Chairman.) — Can’t you state the circumstances, Mrs. 
Nickerson? Can’t you tell the Committee how and what took place? 

Q. (By Mr. Harriman.)— Whether or not 3’ou fainted at that 
time? A. — I did. 

Mr. Burdett. Suppose you let her testify, instead of doing it 
yourself. 

Mr. Wadleigit. What is that? 

Mr. Burdett. I asked him to let her testify herself. 

Mr. Wadleigh. That is what we propose to do, sir. 

Q. (B}'the Chairman.)— I understand you to sa} T you fainted, 
Mrs. Nickerson. What was the cause? A. —What was the cause? 

Q. —Yes : what was the reason of it? A. — Excitement. 

Q. — Excitement ? A. — Yes. 

Q. — What caused that? A. — What was the cause ? 

Q. — Yes 

Mr. Thompson. I would like to know what the excitement was. 

Q. (By the Chairman.) — Don’t you wish to tell, Mrs. Nickerson? 
A. —Of my fainting? 

Q. — Yes. 

Q. (B3" Mr. Harriman.)— What caused the excitement? A. — 
Some was that the room was warm, and some was what he said to 
me. 

Q. (By the Chairman.)— Who said to you ? A. — Mr. Day : I 
could not tell you the words. 

Q. — Tell us the substance of it. Can’t you tell us what it was 
about? Don’t you wish to tell us, Mrs. Nickerson, what it was 
about? If you don’t, why, say so, frankly. 

Mr. Burdett. It doesn’t seem to come from any desire not to 
tell. 

Q. (By Mr. Harriman.) — Can’t you state to the Committee what 
the judge was speaking to you about? A. — I could not. 

Q. (By Mr. Thayer of the Committee.)—Have you frequently 
fainted? A. —Yes, sir, for forty years. It was first caused by a 


122 


HEARING —JOSEPH M. DAY. 


[March, 


fright; and any little thing causes that,—to see Mr. Day coming 
here in this court-room — 

Q. (By the Chairman.) —How long have you known Judge Da}'? 
A. —Three years last March. 

Q. — Did you know him before you went to the probate court that 
time? A. — No, sir: I never saw him. 

Q. —That is the first time you ever saw him? A .—The first 
time. 

Q. —And you went there to get your husband’s will proved? A. 
— Yes, sir: I went about settling the estate with Mr. Higgins. 

Q. —Was it the first time you went there? A. —Yes, sir : I think 
it was. My son could tell you all the particulars; but he being 
absent — they told me that Mr. Higgins would be here with me, and 
meet me at the depot. 

Q. — Did you go there the last time with Mr. Higgins, or with Mr. 
Higgins and your son? A. — Mr. Higgins and my son. 

Q. — Did you have any talk with him? A. —No, sir: no more 
than when we passed in the will. 

Q. — Who passed it? A. —Mr. Higgins, I think. 

Q. —He went with you to the judge at that time? A. —He did. 

Witness. I think I saw Mr. Day sitting here. 

Q. (By the Chairman.)—D oes this seem to you a very close 
room? A. —Yes, sir. 

Q. (By the Chairman.) —After that, what was done,—after Mr. 
Higgins passed in the will? A. — I don’t recollect what was done. 

Mr. Thompson. I wish the fact to appear in the report that she 
fainted here. 

Q. (By Mr. Thompson.) —Are you faint here, and have you been 
faint twice since you came into the room? A. — Yes, sir. 

ISAIAH GIFFORD. Sworn. 

Direct Examination by Mr. IIarriman. 

Mr. Harriman offered in evidence copy of the appointment of 
Isaiah Gifford as guardian of Mary Stid of Provincetown. The date 
of the decree is 1871 ; bond approved Aug. 8, 1871, by Judge Day. 
I have taken the administrator’s account, he said, the final account, 
of the date, allowed Feb. 13, 1877. 

Q. —Your name is Isaiah Gifford? A. — Yes, sir. 

Q .—And you are the gentleman who was appointed guardian of 
Mary Stid of Provincetown? A. — I was. 

Q. — In your probate account I find a charge of $30.OG, attorney’s 
fees : to whom was that paid? A. —Paid to Judge Day. 

Q. —What for? A. — I had a note come in against the estate 


1882.] 


SENATE —No. 150. 


128 


that I supposed to be dishonest. I could not feel at liberty to hire 
an attorney to attend to it, and employed Judge Day to settle it; 
and he did so, and I paid him whatever the charge was. I don’t 
recollect what it was. 

Q. — Your account states that the attornej^s fees were $30.06? 
A. —I don’t recall what it was. 

Q. — Did you employ an}' other attorney than Judge Day? A .— 
I did not: I was not acquainted with any other, so I employed 
him. 

Mr. Harriman. I wish to call the Committee’s attention to the 
clause at the bottom of the account. It is something I never saw 
before in an account. 

Q. —Mr. Gifford, she afterwards became sane, didn’t she, and }’ou 
were discharged? A. — She died. 

Q. — Did she die before your discharge from guardianship? A. — 
I think so. 

Q. — Your services and expenses as guardian amounted to $200 
in this case? A. — Yes, sir. 

Q. — In the last item, paid over to ward, she having become sane, 
$1,135.73. I make it that the difference is— A. — I wasn’t dis¬ 
charged : she became sane, and died afterwards. 

Q .—Then, I find on the bottom, here [showing paper to the Com¬ 
mittee], an inscription by Judge Day regarding the receipt to be given 
to Mary Stid by I. Gifford. You settled up your final account, and 
then retained that balance remaining in your hands as her agent? 
A. — Yes, sir. 

Q. — Were you then discharged from guardianship? A. — I think 
so : I don’t recollect now. - 

Cross-Examination by Mr. Burdett. 

Q. —This note was a note purporting to be given by Miss Stid 
while under guardianship? A. — Mr. Stid : he died first. 

Q. What Mr. Stid? A. —The husband of Mary Stid. 

Q. — So that it is incorrect to say, in these allegations, that you 
were the guardian of Miss Stid? 

Mr. IIarriman. It says Mary Stid. 

Mr. Burdett. Oh, yes! I was misled by the first name merely 
being given. 

Witness. Directly after he died, she became insane ; and I was 
appointed guardian. 

Q. (By Mr. Burdett.) —She was a widow, wasn’t she? This 
was a note given by her husband, then, a consideiable time before? 
A. —Yes, sir. 

Q. — And it was presented to you, as her guardian, for its pay¬ 
ment? A.—Yes, sir. 


124 


HEARING — JOSEPH M. DAY. [March, 


Q. — Who held this note? A. — I don’t recollect. 

O. —It was a note signed by Mary Stid’s husband, was it? A. — 
William Stid. 

Q . — Were there any other names on the note that you remember? 
A. — I think not. 

Q. — Do 3*011 know how old the note was at that time? A .—I 
could not say ; but it was some few years. 

Q .—It was given before his death, of course, and before she was 
put under guardianship as an insane person, was it not? A. — Yes. 

Q. — And this note was presented to 3*011 for payment? A. —Yes, 
sir. 

Q. —As the guardian of Mrs. Stid? Yes, sir. 

Q. —There was no suit brought upon the note, was there? A. — 
None brought, but threatened. 

Q. — Was a suit ever brought upon that note? A. —The note 
was settled for about half its face. Mr. Da3 T settled it. 

Q. — Do 3*011 know whether or not an3 7 administration had ever 
Been taken out on the estate of this deceased Mr. Stid? A .— 
There had been none. 

The Chairman. Mr. Burdett, of course I don’t want to interfere 
with 3 r our cross-examination ; but I don’t see how this is material. 

Mr. Burdett. — I can explain it, sir. 

The Chairman. — If 3*011 sa3 7 that it is, I will accept 3'our word for 
it. 

Mr. Burdett. I have endeavored so far to show that this was 
something in which Mr. Gifford, as guardian of Maiy Stid, had no 
interest whatever; and that whatever was done was done because 
there was danger of an application for the appointment of an admin¬ 
istrator upon the estate of the deceased man, and thus indirect^* the 
propel^ belonging to the insane person be brought in jeopardy to 
some extent, and expenses of administrator incurred into the bargain. 

The Chairman. You ma3 T proceed. 

Q. —He left no will, did he? A. —No. 

Q. —Before letters of guardianship were granted to 3*011 on the 
estate of Mary Stid, had you not been acting as her agent for a great 
man3 T years? A. — I had not, sir. 

Q.—For any length of time before that? A. —No: I had not 
been acting for her. 

Q. — Had you not advised her in relation to her business affairs? 
A. —She became insane before her husband was buried. 

Q. — Mr. Gifford, please state your recollection, as far as possible, 
in answer to this question : whether or not the note to which you 
have alread3 r referred was not presented for payment before Mary 
Stid was put under guardianship as an insane person? A. — It was 
not, sir, — a little afterwards. 


1882.] 


SENATE—No. 150. 


125 


Q • — You are clear upon that? A. —Yes. 

Q- — IIow long had Mary Stid been under guardianship at the 
time that this note was presented for payment? A. — I don’t recol¬ 
lect, sir. 

Q • — Well, give us some idea. A. — Well, it might be two years. 
Q • — How many times during that two years had }'ou been before 
Judge Day in his official capacity, }’Ou acting as the guardian of Mary 
Stid? A .—I don’t remember whether I was there at all or not 
before, — if at all, not but once. 

Q. — Have you got the receipt for that settlement with you ? A. 

— No, I have not: I didn’t know what I was called here for, and so 
I didn’t bring an} r papers. 

Q. (Ety Mr. Wadleigh.)— Mr. Gifford, did Judge Day under¬ 
stand that 3’ou were acting as guardian? A. —I don’t know. 

Q. (B3’ Mr. Thayer of the Committee.)—Do 3'ou know J. P. 
Johnson? A. — Ido. 

Q. — I see in 3 T our account here that there was $ 15.50 allowed to 
him. What was that for? A. -—I don’t recollect: some bill, I sup¬ 
pose. 

Q. — He is not an attorney, a law3 T er, is he? A. —He is State 
senator here now : he ma3^ have some other occupation. 

Q. — You have “crier, $1.” It is all under the same head as attor- 
ne3’’s fees: “ attorne3 T ’s fees, $30 ; J. P. Johnson, $ 15.50 ; crier, $ 1 , 

— making $ 46 . 50 .” What was the “crier” dollar for? A .—I 
. don’t recollect now, it was so long ago. Oh! Ido remember: the 

property I had sold at auction I had cried in Provincetown. 

Q. — Do I understand 3 T ou to sa3’ that this Maiy Stid was the only 
heir to her husband’s estate? A. — She was. 

Q. —There were no children? A. — No children. 

Q. (Ity Mr. IIarriman.) —Mr. J. P. Johnson is an auctioneer in 
Provincetown, is he not? A. —Yes, sir. 

Q. — If you had had an auction, Mr. Gifford, whom would you 
emplo3 T ? A. — I recollect, I would empW Mr. Johnson. 

Q. (Ity the Chairman.) — Did 3 T ou know Judge Da3* before you 
were appointed guardian ? A. — Oh, 3*es, sir ! 

Q. — How long had 3*011 known him before that? A. — Man3’ 
3*ears : I could not sa3 r . 

Q. —Did you go to court 3’ourself when 3'ou were appointed guar¬ 
dian? A. — I did. 


NOBLE P. SWIFT. Sworn. 

Q .— (I>3 r Mr. IIarriman.) Do 3*011 remember one Emity Harri¬ 
son having a suit against you? A. —Yes, sir. 

Q. — Who was your counsel in that suit? A. — Joseph M. Day. 


I 


126 


HEARING —JOSEPH M. DAY. [March, 


Q. — What was the result of that suit? A. — I got beat. 

Q. — Do yon remember in what year it was? A. — No, sir. 

Q. — Do you remember what season of the y*ear the trial was? A. 
— Well, the courts held there spring and fall. 

Q. — Do you remember whether it was the spring or the fall term? 
A. — I guess it was both. 

Q. — The trial was in both terms? A. — It went through two 
courts. 

Q. — By two courts you mean one trial in the superior court and 
one in the supreme court? A. — Well, the3 r were both of one kind : 
the jury disagreed the first time. 

Q. —Then you had another trial in the superior court, and got 
beat? A. — Yes, sir. 

Q .—Then, the case was next carried to the supreme judicial 
courts on exceptions? A. —I suppose it was. 

Q .—When did you learn that the case was decided ultimately 
against you? from whom did 3*011 learn that? A. —Joseph M. Day*. 

Q. — Whether or not you paid Judge Day for his services to you 
in that suit? A. — Yes, sir, I paid him. 

Q. — How long was it before 3*011 paid him that the suit was de¬ 
cided against you ? A. —- Not very* long. 

Q. — How long should you think? A. — I should think that I 
paid him when he told me that the exceptions were overruled, and 
he could not carry the case aii3* farther. 

Q. — Was any thing said about your going into insolvency at that 
time as an effect of the verdict? 

Mr. Thompson. I object to airy such communication as that, or 
any such way of putting the question. 

Mr. Harriman. Do you object to the form of m3 T question or to 
the substance? 

Mr. Thompson. I object to both. 

Mr. Wadleigii. What is the ground of the objection to that ques¬ 
tion, whether or not any thing was said between them at that time 
in regard to his going into insolvenc3*? 

The Chairman. We admit the question. 

Witness. There wasn’t any thing said. 

Q. — Was there at airy subsequent interview between 3*011 and 
Judge Day*? A. — There was not. 

Q. — When did you make up 3’our mind to go into insolvenc3*? 

Mr. Thompson. I submit that that is wholly* immaterial when he 
made up his mind to. When the proceedings were instituted is 
enough, if any thing. I object to that on the ground that it cannot 
affect these respondents. 

Mr. Wadleigh. But it may* have a bearing on some other testi¬ 
mony so that it becomes material. 


1882.] 


SENATE —No. 150. 


127 


The Chairman. I think, unless the question can be brought for¬ 
ward in a better way, I shall rule it out at present. 

Mr. Harriman. If it please your honor, the question I had in 
my mind was on the matters of voiding a discharge. If your under¬ 
standing is, that this book of last year’s testimony is in, Judge Day 
testified last year that he received his pay after the exceptions were 
overruled, which was Oct. 22 , 1866 , and before the petition was filed, 
which was March 21 , 1867 , lacking five months and a dav between 
those two dates. Somewhere between those two dates he states that 
he received his pay T from Noble P. Swift. Now, the statute upon 
that question of discharge is this : — 

“ A discharge shall not be granted or valid if the debtor has wilfully sworn 
falsely as to any material fact in the course of the proceedings, or if be has 
fraudulently concealed any part of his estate, or effects, or any books, or writ¬ 
ings relating thereto; or if, being insolvent, and having reasonable and suffi¬ 
cient cause to believe himself so, he has, within one year next before filing of 
a petition by or against him, paid or secured, either directly or indirectly, in 
whole or in part, any borrowed money, or pre-existing debt, or any liability of 
his or for him” (I860, chap. 118, sect. 87). 

The Chairman. That would simply go to show that you ma}” ask 
him when he knew he was insolvent. 

Mr. Harriman. That was the question I was asking. 

The Chairman. You were asking him when he made up his mind 
to go into insolvency. 

Mr. Harriman. That would touch upon the same subject. Of 
course I will take the Chairman’s ruling. 

Q. —Mr. Swift, when were you satisfied in your mind that you 
were insolvent? 

Mr. Thompson. I don’t see how that can be material. 

The Chairman. Ask him the question when he knew he was in¬ 
solvent. 

Q .—When did y’ou know that you had become insolvent, or had 
reasonable cause to know you were insolvent? 

The Chairman. I will admit that. 

Mr. Thompson. If the Committee will pardon me a moment, as 
this is a matter of some importance as to the mode of proceeding, 
what this man knew can in no way affect Judge Day. 

The Chairman. We will look out for that, sir. Unless it is 
brought to Judge Day’s knowledge in some way, it shall not affect 
him any. 

Mr. Thompson. I presume that is the case, but I certainly do not 
care to have it put in. 

The Chairman. We cannot presume in advance what the counsel 
is going to prove. 


128 


HEARING —JOSEPH M. DAY. 


[March, 


Mr. Bukdett. He has already testified to the fact that he said 
nothing to .Judge Day about his insolvency, either at the time inquired 
of, or at any subsequent time. That would seem to make the matter 
immaterial. 

The Chairman. I can only’ say T , that, unless they connect his 
knowledge in some way’ with Judge Day’’s knowledge of the fact, it 
cannot affect Judge Day. 

Q .— Will you please answer my question, Mr. Swift? When did 
you know you were insolvent, or had reasonable cause to know that 
you had become insolvent? A. —I can’t tell y r ou that. 

Q . — How near to the time, if y;ou can tell, when you learned that 
the verdict was against you, and that the exceptions had been over¬ 
ruled ? A. —I have no recollection of it at all. 

Q. — How long before you filed y’our petition? A. — I don’t know 
any' thing about it. 

Q. — Haven’t you any r recollection about it? A. — None at all. 

Q. — Have you any 7 recollection as to whether the matter was men¬ 
tioned between Judge Day 7 and yourself? 

Mr. Burdett. He said twice that he had not. 

Mr. IIarriman. I want to see whether his statement is from recol¬ 
lection, or whether he knows. 

Mr. Thompson. He said he had no recollection of it. He cannot 
know except from his recollection, I suppose. 

Q. — Have y T ou any T recollection upon the subject? A — What 
subject are you asking about? 

Q. — As to whether or not the question of your insolvency was 
mentioned between Judge Day’ and yourself. A. — I don’t think that 
it was ever mentioned. 

Q. (By 7 the Chairman.) —Who acted as your counsel in present¬ 
ing your petition for insolvency? A. —Sawyer was his last name: 
I don’t know his first name. 

Q. — How came you to go to this man Sawyer? 

Mr. Thompson. I object to that. 

The Chairman. I don’t see how that is material. 

Mr. IIarriman. Unless it should appear that he was recommended 
by’ Judge Day. 

The Chairman. You can ask him when he went. 

Q. — When was it you first saw Mr. Sawy’er? A. — Well, I can’t 
tell. I suppose it must be about that time, — between those two 
courts : I have no recollection. 

Q .—Did Mr. Sawy’er ever appear before the court of insolvency 
for you in person ? A. — He did not. 

Q. — Did he do any thing more than to draw up y 7 our petition for 
you ? A. —Yes : he charged me a good bill. 


1882.] 


SENATE—No. 150. 


129 


Q • —You say that he was present at none of the hearings before 
the court of insolvency? A. — No, sir : lie did not. 

Q. (Ity the Chairman.) —Were 3 r ou present yourself at these 
hearings before the court of insolvency? A. — I was. 

Q • —At all of them? A. —Every time, so far as I know. 

Q • — Who presented the petition, — Mr. Saw} T er or yourself? 
A. — I have no recollection about that. 

Q • — Who paid a deposit-fee of forty dollars to the register when 
3 'our petition was filed? A. — Well, I think that was William Swift. 

Q. — That was 3 T our brother? A. —That is m 3 7 father : I have a 
brother of that name too. 

Cross-Examination . 

Q. (By Mr. Burdett.) — Isn’t it true, that, shortty after the termi¬ 
nation of Miss Harrison’s suit against 3 T ou, you and Judge Day^ were 
not on speaking terms with each other, and haven’t been since, — no 
matter what the reason was, — isn’t it true ? A. — I don’t know why 
we were not on speaking terras as much as an 3 7 bod 3 T , — well enough, 
good enough. 

Q. — Do 3 r ou remember having an 3 T conversations with Judge Day? 
and, if so, how many, after the termination of this suit of Miss Har¬ 
rison against you, or after 3 T ou paid him his fees? A. —Well, there 
may be : I don’t recollect now. 


AMBROSE N. DOANE. Sworn. 

Q. (By Mr. Harriman.) —You were appointed administrator of 
the estate of Joseph C. Lawrence? A. —I was. 

The Chairman. What papers do you put in? 

Mr. Harriman. I put in the decree appointing him of the date of 
Aug. 3, 1875, and the bond approved the same day; also an account 
bearing date of approval of Dec. 11, 1877. Under date of April 10, 
1876, I find this in the account: “Paid Joseph M. Day, Esq., for 
legal advice to account, J. C. L., $25.’’ 

Q. — Did you pa 3 T Judge Day twent 3 T -five dollars ? A. — I did, sir. 

Q. —Have you the voucher for that? A. —I believe I have. 

Q. — That was the receipt that 3 'ou received from him ? A. — Yes, 
sir, it was. 

Q. — Had there been a suit in the superior court against Joseph 
C. Lawrence by one Joseph O. Baker? A. —I believe there had, 
sir. 

Q. — Do you remember when that suit was settled ? A. — I think 
it was settled after Capt. Lawrence died. 

Q .—Under whose advice was it settled? Who was counsel for 


130 


HEARING — JOSEPH M. DAY. [March, 


Joseph C. Lawrence in that suit? A. —I think Judge Day was 
counsel for Capt. Lawrence. 

Q. — You settled the suit, did you not? you paid the money? 
A. — I did.. 

Q. —It was a suit in which he was counsel for Joseph C. Lawrence 
against Joseph O. Baker? A. — I think it was. 

Q. — Under whose advice did 3*ou settle the suit? A. —I don’t 
know as I can really answer that question. 

Q. — The amount of money involved in that suit was the same as 
in the charge here of Oct. 2 , “Joseph O. Baker, $ 97 . 74 ”? A. — I 
think it was : yes, sir. 

Q .—Whether 3*011 settled it on 3 r our own motion, or under the 
advice of counsel? A. — Well, my impression is — 

Mr. Thompson. I object to that, if he hasn’t an} r recollection 
about it: if he has, he can state it. 

The Chairman. State as nearty as 3 T ou recollect the circumstances 
under which you settled it. 

Witness. It is my opinion, sir, that it was under my own sugges- 
gestion, that I proposed to effect this settlement. 

Q. — Do you remember whether or not } r ou consulted Judge Day 
in the matter? 

Mr. Thompson. Now, Mr. Chairman, I object; because this is a 
repetition, and it seems unnecessary and superfluous to go over the 
same matter so man3* times. 

The Chairman. I don’t care to have it argued : I think the coun¬ 
sel, following the usual way of getting at the recollection of a wit¬ 
ness, after he has exhausted that, has a right to call his attention to 
some particular matter. 

Mr. Harriman. That was just what I was proceeding to do, Mr. 
Chairman. 

Q. — Will 3*ou state whether or not 3*011 consulted Judge Day with 
regard to the settlement of this case ? A. — I ma3 r , and I may not: 
I don’t remember. 

Q. — Did you inquire of Judge Day what service he had rendered 
to charge twenty-five dollars for? A. — I did at the time of settle¬ 
ment : 3 7 es, sir. 

Q. — What was it for ? A. — It was for — If 3*011 will allow me to 
state, I think there was another suit in which Judge Day was coun¬ 
sel for Capt. Lawrence besides this ; and I am not positive now — I 
won’t say but that was a receipt in full for all dues and demands 
against the estate in the case of Baker and the case of his wife. I 
am not positive on that. 

Q • — Whether or not you took any pains to find out what the bill 
was for that you were paying the judge? A. — I remember of asking 


1882.] 


SENATE— No. 150. 


131 


him ; but I think it was on account of Mr. Baker’s. There was 
another suit, though. 

Q. — Do you know what services he rendered in the Baker suit? 
A . — I don’t know, sir. 

Q. — Did you receive any bill for services other than that receipt 
you show there from Judge Day, or any claim against the estate? 
A. — I did not. 

Q. —Do you know at what time the case of Joseph O. Baker 
against Joseph C. Lawrence was settled? what term of court? A. — 
I don’t think the case was ever tried : I think it was taken from the 
courts. 

Q. —I mean, when it was settled on the records of the court, — at 
what time was the entry made? A. —I don’t know, sir. 

Q. — Do you know what services Judge Day performed in that 
suit? A. —I think the case was entered in court, and Judge Day 
answered for Capt. Lawrence. 

Q. — Are you sure that he filed even an answer, — any thing more 
than enter an appearance? A. —I am not. 

Mr. Burdett. Is the object of your question to show that Judge 
Day’s charge was unfair? 

Mr. Harriman. I should say it was unfair if all he did was to 
enter an appearance. 

Mr. Chairman. The simple question, it seems to me, Mr. Harri¬ 
man, for you to present to the Committee here, is, whether this bill is 
for services rendered occasional!}' before this man was appointed 
administrator, or whether the whole or any part of the charges were 
for services rendered after this man was appointed administrator. 

Mr. Harriman. I shall have’to produce the records by summon¬ 
ing the clerk of the superior court before the hearing is through. I 
am trying to do with this witness all I can to refresh his recollec¬ 
tion. 

Q. — x wish to ask you if you did not testify in Judge Day’s favor 
last year upon the hearing? A. — I did. 

The Chairman. Do you put in this receipt, Mr. Harriman? 

Mr. Harriman. —Yes, sir, for what it is worth. 

[The following voucher w'as then put in.] 

COMMONWEALTH OF MASSACHUSETTS. 

Barnstable, ss. 

In the Superior Court of the term thereof begun and holden at Barnstable 
in and for the county of Barnstable, on the first Tuesday of April, A.D. 1876, 
to wit, on the tenth day of April during said term, Ambrose N. Doane paid me 
twenty-five dollars in full of all demands against the estate of Joseph C. Law¬ 
rence. 


J. M. DAY. 


132 


HEARING —JOSEPH M. DAY. [March, 


Q. (By the Chairman.)— Do you recollect, Mr. Witness, whether 
or not any part of this bill was for services or advice for you or to 
you as administrator? A. —I do not: no, sir. 

Q. — You don’t recollect? A. —I don’t recollect. 

Q. — You can’t say they were or they were not? A. — I cannot: 
no, sir. 

Q. (By a member of the Committee.) —Was any statement or bill 
presented showing that services were rendered to Mr. Lawrence in 
his life-time by Judge Day? A. — I knew the fact: I knew that 
Judge Day was his counsel. 

Q. (By the Chairman.) —Did j t ou go to him for advice in regard 
to the settlement of the estate after you were appointed administra¬ 
tor? A. — I did: yes, sir. 

Q. (By Mr. Hill of the Committee.) —How many times did you 
go to him? A. —It might have been once or twice : I don’t remem¬ 
ber exactly. It was some time ago, and I have not refreshed my 
memory. 

Q .—Where did you go then, to his office or to the court-room? 
A. —I went to his office. 

Q. — Did you go before or after this receipt was given? A .— 
I can’t say: I don’t remember how soon after that the business was 
settled up. 

Q. (By Mr. Thayer of the Committee.) —I find you have charged 
here, Mr. Doane, in your first and final account, under date of April 
10 , 1876 , u Paid Joseph M. Day, Esq., for legal advice, account J. 
C. L.” Would you have charged that in that way had Mr. Day 
made that charge directly to you as administrator of the estate? A. 
— I don’t think I should. 

Q. (By the Chairman.) — Who prepared the account? A. — I 
prepared the account, sir. 

Mr. Burdett. I wish the Committee to notice that the expression 
is “ legal advice,” not “ services.” 

Q. (By Mr. Wadleigh.) —I understood you to testify this, Mr. 
Doane, that you knew of no services he rendered the estate of the de- 
ceased except to appear in court in this case of Baker’s? A. —That 
is so. Excuse me: there was another case. I would not say this 
was for that; but I am sure it was for Baker’s. 

Q. — Didn’t you state that your recollection was that it was for 
the Baker case? A. — I think it is : yes, sir. 

Q. — I understood you to say just now that you knew of nothing 
that he did in that case except to appear in court? 

Mr. Burdett objected. 

The Chairman. What is the question? 

Mr. Wadleigh. The question is, whether he knew of any 1, ser¬ 
vices rendered in the Baker suit, except simply appearing in court. 


1882.] 


SENATE —No. 150. 


138 


Mr. Thompson. I object to that on the same ground that I did 
before. If we have got down to that, —to trying the size of Judge 
Day’s bill — 

•s 

Mr. Wadleigh. We are trying no such thing, Mr. Chairman. 
In all cases where a fact is in issue, circumstances tending to prove 
the probability of one theory or the other are admissible ; and that is 
just this case. I am astonished that anybody should object to that 
question. 

Q . — Now, do you know of any services being performed by Judge 
Day in the Baker case, to which this receipt refers, as you say, ex¬ 
cept simply appearing in court? 

Mr. Thompson. We object, because there is nothing which appears 
here to show that the witness had charge of it. It was his intestate’s 
matter, and whatever services he rendered were rendered to his intes¬ 
tate. He certainly cannot have any knowledge about that matter. 
And to undertake to base an argument upon a fact such as he intends 
to draw in here, I submit is unfair: such an argument is entitled to 
no consideration, and it is wholly immaterial whether he knows or 
not. He didn’t act for the intestate in this matter; and I don’t 
know how he can have any knowledge about the matter except what 
he learned from Judge Day, or what he learned from his personal 
connection with these suits. 

Mr. Wadleigh. Suppose he learned it from Judge Day,—does 
my brother Thompson say it is not admissible ? 

Mr. Thompson. Any conversation that he had with Judge Day 
about what it is for, you have gone over, I understand, full}’. 

Mr. Wadleigh. I have not gone through with it. It may seem 
so to you ; but it doesn ’t seem so to me. 

The Chairman. The opinion of the majority of the Committee 
seems to be that the question may be asked. 

[Question repeated.] 

Witness. If I could just state a little circumstance before this 
that is connected with this case, I could show it. 

The Chairman. Suppose you answer the question first, and then 
make a statement afterwards. 

A. — I cannot say that I did directly. 

Mr. Wadleigh. Now you can give any explanation you desire. 

Witness. I wanted merely to say that Capt. Lawrence was away 
when this bill was contracted ; and, when he came home and found 
it out, he was somewhat perplexed about it, and refused to pay the 
bill. He was sued ; and he consulted Judge Day, and he acted as 
counsel for him. I knew this fact right upon that: just before this 
came to trial, I think, Capt. Lawrence died ; and, knowing these 
facts, and being satisfied in my mind that the bill was a proper one 
to be paid, I advised its payment. 


134 


HEARING —JOSEPH M. DAY. [March, 


Q. — Did you have any attorney in connection with your settling 
up the estate of Capt. Lawrence? A. — I think at the last, the very 
closing up of it, Mr. Harriman assisted me just a few moments, — 
no advice as I know of, particularly. 

Q. — You had no assistance at all? A. — None at all. 

Q. — You say Judge Day advised you about the matter? A. — I 
don’t understand that I said so. 

Q. — Did you talk with him about matters? A. —If any ques¬ 
tion came up where I was in doubt how to dispose of it, —that is, in 
relation to probate affairs, — I asked his opinion as judge of probate, 
not as counsel. 

Q. —You took his advice about the matter? A. —Yes, sir: for 
instance, paying out money, or any thing like that, and how to charge 
it. 

Q. —He gave you no bill of items? A. —No, sir, none at all. 

Q. — Did he furnish you with an } 7 account except the receipt which 
you have produced? A. —Nothing. 

Q. —When did you pay him, — after the estate was settled? A. 
Before the estate was settled. 

Q. —During the settlement of the estate? A. —During the set¬ 
tlement of the estate : yes, sir. 

Cross-Examination . 

Q. (By Mr. Burdett.) —I want to ask you one or two questions 
only. You being the administrator of this estate, when a matter 
came up in relation to the estate, as to what you should do, you went 
to Judge Day as the judge of probate, did you not? A. — Yes, sir. 

Q. —And not as counsel in any sense? A. —No, sir: I didn’t 
suppose he acted as counsel. 

Q. —And, if you have had experience in settling estates in other 
counties, can you state what has been the practice? 

Mr. Wadleigh objected, and the question was withdrawn. 

Q .—You had no charge, Mr. Doane, of the Baker cases, so 
called, against Mr. Lawrence, had you? A. —No, sir: they w r ere 
not in my hands at all. 

Q. — You knew nothing more about the amount of services ren¬ 
dered, or what was done or what was not done, than any other out¬ 
sider would be apt to know about some other person’s lawsuit, did 
you? A. — Yes, I think I did, from the fact that I was somewhat 
connected with Capt. Lawrence in business, and a little conversant 
with his affairs. 

Q. —But do you pretend to know all that was done? A. —No, 
sir, I do not. 

Q •—But did you have, in any way, directly or indirectly, any 
charge of those cases? A. —I did not. 


1882.] 


SENATE—No. 150. 


135 


Q . —There were two of them, were there not? A. —Yes, sir. 

Q. (By a member of the Committee.)—Two Baker cases? A. 

— No, sir: two cases. One was the Baker case, and the other was 
in relation to some disagreement between himself and his wife. 

Q. (By Mr. Burdett.) —You reside at Harwichport, do you not? 
A. —Yes, sir. 

Q. —You are a merchant in that place? Q. — I am : yes, sir. 

Q. (By Mr. Harriman.)— This matter between himself and his 
wife was a long time before he died, and before this Baker suit was 
brought? A. — I am not positive about that. 

Q. — Do you know any thing about it except by hearsay? A .— 
Oh, yes ! I was somewhat conversant with it. 

' Q. —Were you present at the trial? A. —Never. 

Q. — Do you know w’hen the trial took place ? A. — I do not. 

Q. (By Mr. Burdett.) —I forgot one question : w-hether the pro¬ 
bate office and Judge Day’s office are not synonymous terms? A. 

— I can’t answer that question. 

Q. —Don’t 3 ~ou always find Judge Day either at his office or at the 
probate office in Barnstable when he is doing business? A. — I 
think I do. 

Q. — Do you know of any other office that Judge Day has? A. — 
I do not. 

Q. (By Mr. Harriman.) —Don’t you know that Judge Day has a 
private office just before you enter the probate office, — a private 
room, I mean, separate from the court-room? A .—I don’t know 
about it. Yes, I think there is ; but I don’t know whether it is a 
private office, or whether it is connected with the probate office. 

Q .—It is called the judge’s room, is it not? A. — I can’t say. 
I keep clear of the court-house as much as I can. I am not very 
well posted on those things. 

JAMES A. BURGESS. Sworn. 

Q. (By Mr. Harriman.) —Where do you live? A. — Middle- 
borough, Plymouth County, Commonwealth of Massachusetts. 

Q. —What is your business there? A. — I am a police officer. 

Q. — Do you know r Judge Day ? A. — I do. 

Q. _How long have you known him? A. — I first met him at 

Lynnfield : my acquaintance with him is slight. I first met him 
when I was there with a squad of boys from Middleborough. We 
went in with the balance that he brought from Barnstable, and made 
a company. I have seen him occasionally since. 

Q. (By the Chairman.) — When was that? A. — It was when 
the Fortieth Regiment was organized to go to the war. I think it 
was August, 1863. I am not positive. 


136 HEARING —JOSEPH M. DAY. [March, 

Q. (By Mr. Harriman.) —You have known him since that time ? 
A. — Yes, sir, I have. 

Q . — Did } t ou see him at Middleborough during the last political 
campaign ? A. — I did. 

Q. —What time of the day was it that you first saw him? A .— 
When he left the train in the morning, when he came up to the con¬ 
vention, on the fifth daj’ of October, 1880. It occurred Tuesday of 
the week. 

Q. — Did you see him again in the afternoon? A. —I did : I saw 
him at noontime. 

Q. — Did } r ou see him later? A. — I saw him later. 

Q. —What was his condition at that time? 

Mr. Burdett. Wait a moment. We haven’t seen any specifica¬ 
tion of this as 3 T et. We have a little curiosity to know something 
about the lay of the land before we begin to traverse it. We should 
like a specification of this filed, and then w’e shall make no objection. 

Air. Harriman. May it please the Committee, if 3 T ou rel 3 T upon 
an 3 T charge within six 3 ’ears, we shall specif 3 T . That was the rule 
that was laid down last year. 

Mr. Thompson. No: that was under the general allegation, and 
3 t ou have left that out, and now undertake to specif 3 r each particular 
case. 

The Chairman. Under what specification do 3 ^x 1 claim this is 
admissible? 

Mr. Harriman. “That in 1878, in the cars near Cohasset Nar¬ 
rows; in 1879, at Davis’s Hotel in Falmouth; and about 1873, in 
the cars going from Boston to Barnstable; and at other times and 
places , — he was intoxicated under circumstances calculated to bring 
his office into contempt.” Under that general charge, “other times 
and places,” I understand we can put in an 3 7 evidence back of six 
years; but, under the rule laid down last year, an 3 r act proved to be 
within six years, it was not necessaiy to specif 3 7 . That was the rule 
acted on last 3 7 ear. 

Mr. Thompson. He must understand perfectly well that they left 
out of this year’s charges the general allegation, and brought in 
special cases. I commented on that at length, and I asked the coun¬ 
sel for the petitioners here what those general clauses meant. He 
said they did not mean an 3 T thing, — that was substantially his an¬ 
swer ; and this is a new charge wholly. 

The Chairman. The Committee will admit the testimony. 

Mr. Thompson. May I ask now, at this stage of the case, be¬ 
cause we are certainly proceeding upon something which I had not 
supposed would be the way of proceeding: Are we entitled to speci¬ 
fications, or not? If we are not entitled to them, then I should like 


1882.] 


SENATE —No. 150. 


187 


a ruling on the part of the Committee that will determine that; but I 
had supposed, all the way along, that we were entitled to specifica¬ 
tions. Now, of course, if we are not, the Committee is supreme, and 
I 011I3' occupy the humble position of counsel; and I certainly do not 
want to say any thing with regard to this matter. But, if it is with¬ 
out specifications that we are to be tried here, certainly I would like 
to know it. 

The Chairman. I think that the Committee looked at this particu¬ 
lar case, Mr. Thompson, without having in view the general rule. 
Of course, you would not claim that the matter could not be admitted 
under that specification ? 

Mr. Thompson. Certainly I should, most decidedly ; and that it 
would be most unjust after the declaration made here. The prelimi¬ 
nary matters were gone into, and I asked distinctly what the meaning 
was of those closing general phrases. The counsel said that they 
meant nothing. Then I asked if we were to answer to the specifica¬ 
tions. Yes, he said; and that was the understanding about this 
matter. It is changing the whole nature of the inquiry, and it does 
not stand differently than though no specifications were made at all; 
because, if they can put in evidence on general charges, then it is of 
no particular advantage to us that there are any specifications; and 
the remonstrants are here called upon to answer charges covering 
twenty-three years without specifications. If that is the course of 
procedure, I must submit to it ; but I cannot do it without objecting 
to it as earnestly as I ma} T be able. These petitioners have had a 
year and a half: if they knew this at the time, then certainty, — I 
won’t say that it was dishonest, but I will sa}' it was unfair, to con¬ 
ceal it. I say, furthermore, that, if they did know it, the} 5, should 
have called up the question, and asked for an amendment of the 
specifications, so that we could have had notice, and a chance to 
object. But we are not now in any condition to cross-examine with¬ 
out these specifications having been made in advance. This is a 
matter that took place some thirty or forty miles away, and we had 
no intimation in any manner or form that we were to be called upon 
to meet it. All I ask for is fair play. If the Committee think that 
is placing the question in a proper form, I bow to its decision ; but 
I must saj T that we ought to know in advance something with regard 
to the charges upon which they undertake to remove a faithful and 
efficient officer from the position which he has filled so many years 
with so much credit. And when they abandoned the charge that he 
was guilty of the excessive use of spirituous and intoxicating liquor, 
and came down to specifications, I supposed that we had a right 
then to have those specifications, — put in for the purpose, as it 
appeared, of preventing the general good character of Judge Day 


138 


HEARING —JOSEPH M. DAY. 


[March, 


from coming in,—put in this form of pleading for the purpose of 
taking aw a}’ from us the advantage that we should have from his 
known sobriety and temperate habits. And now they say they want 
to put in under that general allegation any testimony that they see 
fit, at any time, without giving us any notice of it, or without filing 
any specification. What were the specifications for? I don’t know 
what the}’ were for, if the}' were not to give the remonstrants infor¬ 
mation as to what the charges were. If they want to put in the 
general charge of drunkenness, we are ready to meet that at any 
moment. If they wish to go back, they can take their choice now, 
change their pleading, and go back to the original position which 
they took, saying that Judge Day is a man of intemperate habits. 
We are prepared to meet that, —willing to meet it, glad to meet it, 
at any time. And if they put us to bur cross-examination, having 
first filed their specifications, we are certainly ready to meet that. 
But, when it comes the last day, it may be that, without any specifi¬ 
cations, we shall have witnesses coming in here, just as they have 
undertaken this morning to introduce a witness, without any specifi¬ 
cations at all under their general charge. I submit that the counsel 
for the remonstrants, or the remonstrants themselves, have a right 
to know what the order of proceeding is to be. Whatever it may be, 
we will submit to it as best we may, —of course, we are called upon 
to do that; and we will manage that as best we can : but we do ask 
to be tried under some general rule, —that is all. 

Mr. Hakriman. If it would give better satisfaction to the Com¬ 
mittee and to the counsel on the other side, we are willing to specify 
this charge and all other charges of drunkenness before we put them 
in, and give them fair notice. This case came to my knowledge last 
Tuesday of this week, — the first I had any knowledge of it was on 
Tuesday ; and we are willing to specify that the examination of this 
witness be postponed to another day, that they can have full oppor¬ 
tunity to cross-examine. 

Mr. Thompson. If the counsel makes a written motion to amend 
his specifications when it comes up for consideration, I shall certainly 
desire to be heard upon that subject; but I submit that that is the 
only way that the matter can be brought before the Committee con¬ 
sistent with any rules of pleading such as have been suggested and 
directed by the Committee in this case. 

The Chairman. I don’t understand, Mr. Thompson, how you can 
fairly claim that that is not a specification, — u at other times and 
places he was intoxicated under circumstances calculated to bring 
his office into contempt.” If Judge Day were indicted or complained 
of for being a common drunkard, I should not have to set out in the 
complaint of the indictment the times and places where he was drunk. 


1882.] 


SENATE —No. 150. 


139 


I am simply confined to six months. If I can show that he has been 
drunk three times at any place or at an}- time, my condition will stand 
if the judge finds him guilty. I am not obliged to set out at what 
place he was drunk or what time he was drunk. Now, this is a dis¬ 
tinct and particular specification of intoxication — 

Mr. Thompson. Covering twenty-one years ; and I supposed the 
length of time was six years — 

Mr. Hakriman. Not six years, by any manner of means. He has 
put six years in. He has forgotten about this matter — 

The Chairman. Mr. Thompson is right about that: there has 
been no rule made with regard to that. But, as I stated in the 
beginning, this particular instance seemed to be so recent, that the 
opinion of the Committee was, that it should be admitted under this 
charge. I do not think the Committee would allow evidence of an 
act of this kind happening many years ago, where it might be diffi¬ 
cult for the party to prepare himself, or to find the witnesses, to go 
in. But it did seem to them that this offence being so recent, and 
coming at this stage of the case where Judge Da}' would have ample 
opportunity to meet it, it should be allowed to go in. 

Mr. Thompson. I want to know what objections there can be to 
putting in a specification. I understood they were to specify. This 
is the general objection, that we have no specification of it, and no 
notice. It was agreed that those general phrases did not mean any 
thing. We have come here to be tried by specifications ; and I sub¬ 
mit it does not change the rule whether the period is twenty years or 
five years. The rule is the same, and the rule is always illustrated by 
extreme cases ; and the necessity-of the rule is illustrated from the fact 
that it may go back twenty-three years. I submit that that is a suf¬ 
ficient reason why specification of the whole should be put in, that 
we may know when and where the instances which we are to be called 
upon to answer are claimed to have taken place. 

The Chairman. I think we will allow this to go in ; and, before our 
next hearing, we will decide upon some general rule. I think myself, 
while it seems to me that the specification here would allow them to 
put in evidence of this kind, still, in the interest of fair play, the 
counsel for the other side should give notice to the remonstrants here 
of any case of this kind. 

Mr. Harriman. We are willing to do it at least twenty-four hours 
before we put it in. 

Mr. Thompson. Twenty-four hours before you put it in ! I am 
thirty-three miles away, and Judge Day is called upon to answer here 
at seventy miles away; and they say they will give us twenty-four 
hours’ notice ! It isn’t time enough for the taking of a deposition. 

The Chairman. We will pass upon this hereafter before the next 
hearing. Proceed with this evidence now. 


140 


HEARING — JOSEPH M. DAY. 


[March, 


Mr. Thompson. Will not the Chairman do us the favor to ask 
them to specify the charge before they put in evidence, so that we 
may know what it is, and what we may be called upon to answer? 

Mr. Wadleigh. I have been trying to get an opportunity to say 
that I did not know any thing about this, and therefore I could not 
make a specification. The first thing I heard of it was when the wit¬ 
ness came upon the stand. 

The Chairman. I think the other side are entitled to what Mr. 
Thompson now suggests, that } T ou put }*our specification in writing. 

Mr. Harriman. We are willing that the examination of the wit¬ 
ness should be postponed if the} T want it postponed. 

Mr. Thompson. We want the specification: we don’t know what 
it is. 

[Mr. Wadleigh then moved to amend the sixth specification by 
inserting after u Cohasset Narrows,” “At Middleborough, Oct. 5, 
1880.”] 

Mr. Wadleigh. Of course we have no objection to giving speci¬ 
fications at any time; and I want to say right here, to n^ friends on 
the other side, that we shall also ask to amend the first section by 
inserting after the thirteenth item this: “In 1875, for Thomas H. 
Lawrence.” That has come to our notice only this morning. 

Mr. Thompson. I submit, in all fairness, that, before we proceed 
with this hearing, — and I am willing to submit to any delay, if it 
is a week, — we ought to have the pleadings arranged. 

Mr. Wadleigh. They are arranged now : and, if any thing comes 
to our knowledge, we shall ask the Committee for a further amend¬ 
ment undoubtedly; because the question here, whether Judge Day’s 
office ought to be declared vacant, is one which concerns the public. 

Adjourned to Friday, March 3, at 10.15, at Room 14. 


1882.] 


SENATE —No. 150. 


141 


SIXTH HEARING. 

Room 14, State House, March 3, 1882. 

The Committee resumed the hearing at 10.15 a.m., Senator Jen¬ 
nings presiding. 

The Chairman. Proceed, Mr. Harriman, with your witnesses. 


CHARLES F. GOODSPEED. Sworn. 

Direct Examination by Mr. Harriman. 

Q. —Your name is Charles F. Goodspeed? A. — Yes, sir. 

Q. —And were you son of Levi L. Goodspeed? A. —I am. 

Q. —Your mother’s name is— A. —Mary M. Goodspeed. 

Q. — How old are you ? A. — Twenty-one. 

Q. — When were you twenty-one ? A. — Last January, I guess. 

Q .—What is your business now? A. — Messenger of the Hide 
and Leather Bank. 

Q. —In this city? A. — In Boston : yes, sir. 

Q. —Are you acquainted with Judge Day? A. — I am. 

Q. — Who was your guardian? A. —Josiali P. Whitman. 

Q. —And you had a brother by the name of— A. — George M. 

Q. — And his guardian was who ? A. — Mary M. 

Q. —Did you go to Judge Da}' with your mother at any time about 
selling the property your father left? A. —I did. 

Q. — To whom did your mother have a desire of selling the prop¬ 
erty? A. —To Joseph L. Proctor. 

Q .—What did you go to Judge Day about? A. —To get per¬ 
mission to sell the property. 

Q .—At that time did you or your mother employ Judge Day to 
do any thing by way of making any agreement? A. —We did. 

Q. — What was done? A. — The agreement was made between 
my mother, my guardian, and Mr. Proctor. 

Q. —Was there more than one agreement made? A. —There 
was : either two made, or one made and then changed. There was a 
change made. 

Q. — Is that one of the agreements that were made [handing wit¬ 
ness the following paper] ? A. — I should say it was. 

Q . — Is that your mother’s signature ? A. — It is. 

Q. —Whose is the other? A. —Mr. Proctor’s. 


142 HEARING —JOSEPH M. DAY. [March, 

Q .—■ Whose handwriting is that? Is that [indicating on paper] 
your mother’s signature ? A. — It is. 

Q .—Do }’OU know whose handwriting this portion is? A. —I 
shouldn’t want to swear to that. 

Mr. Harriman (after allowing counsel to examine the paper). 
The last part of the paper is admitted to be in the handwriting of 
Judge Day. 

Mr. Thompson. Not the last clause of the paper. It is a receipt. 

The Chairman. Will you not read what is in Judge Day’s hand¬ 
writing? 

Mr. Harriman [reading] : — 

“ Barnstable, July 10, 1880. 

“ I have received of Joseph L. Proctor, in three payments heretofore made, on 
account of the foregoing contract on his part to be performed, the sum of four¬ 
teen hundred and twenty-five dollars, on account of his purchase of personal 
and real estate.” 

This is signed “ Marj’ M. Goodspeed, administratrix and guar¬ 
dian.” 

The Chairman. What necessity is there for having the whole 
paper go in? I don’t know that there is any. I suppose you want 
to show that Judge Day acted as counsel for her. I don’t think it is 
necessaiy for the whole paper to go in. 

Q. (By Mr. Harriman.) —After the paper was executed, did any 
question arise between 3 ’our mother and Col. Proctor? A. — I should 
sa 3 T there did. 

Q. — And to whom did 3 'ou go for advice in relation to this ques¬ 
tion ? A. — To Judge Day. 

Q. — Plow long did Judge Day continue 3 T our counsel? 

Mr. Thompson. I object. [Objection sustained.] 

Q. — What were the questions that arose between you and Col. 
Proctor in the first instance with regard to this agreement? A. — 
As near as I can recollect, the first instance arose when he claimed 
that we ought to pa 3 T him for property that we sold before he heard 
of the place, that he bought the property just as my father left it. 

Q. — Any other question arise? A. — I think he claimed pay for 
some property that he said had been sold since he bought it. 

Q. — Any other question arise? A. — There might have been : I 
don’t recollect. 

Q. — Any question in regard to deeds, whether warranty deed or 
quitclaim ? A. — There w r as. 

Q. — Well? A. — He wanted a warranty deed. 

Q. — Any thing said about the examination of title? A. —There 
was. He wanted us to hunt up the title. 

Q. — To, whom did you go then ? 

Mr. Thompson. I object. [Objection sustained.] 


1882.] 


SENATE —No. 150. 


143 


Q .—Did you go to any bod}’ with reference to this question? 
A. —Yes, sir. 

Q. —To whom? A. —Judge Day. 

Q. — What did Judge Day say with reference to this question? 

Mr. Thompson. I object, Mr. Chairman, to his leading the wit¬ 
ness. 

Q. (By Mr. Harriman.) — Tell what took place. A. —We asked 
him, of course, if we were bound to give a warrant}’ deed. He said 
we were not. lie said he never heard of one being given by admin¬ 
istrators or guardians. 

Q. — Any thing said to Judge Day about an abstract of the title? 
A. — I think so. 

Q. — What? A. — I think we asked him if we were bound to do 
that. 

Q .—What did he say? A. — He said we were not; that he 
should look up his own title if he wanted to see whether it was right 
or not. 

Q. —Was Col. Proctor present at any of those interviews? A. — 
I think he was. 

Q. —Do you remember any thing that Judge Day said to Proctor 
about the title? A. — I think he said it was perfectly right: there 
would be no risk in taking a guardian’s deed. 

Q. — Whether or not Judge Day gave you any advice in regard 
to making any tender to Col. Proctor? A. — He did. 

O t/ 

Q. — What advice? A. — He told us to tender our deeds to him 
in the proper form. 

Q. — Did you do so? A. — We did. 

Q. — Did Col. Proctor receive them at once? A. — He did not. 

Q. — Did you see Judge Day again? A. — I think we did. 

Q. — What did he tell you ? A. —To tender them again. 

Q. — Did you do so? A. — I think we tendered them to him 
twice. 

Q. — Are there matters now in dispute between Col. Proctor and 
your mother growing out of this agreement? A. —There are. 

Mr. Thompson. I object. 

Q. (By Mr. Harriman.) —When did Judge Day cease to be 
counsel — 

Mr. Thompson. I object again. 

Q. (By Mr. Harriman.) — When did Judge Day cease to give you 
any advice in reference to the matters of agreement? 

Mr. Thompson. I object to that too. 

The Chairman. The question as to when he ceased to give him 
advice, I shall admit. 

Witness. I think the last time when we received any advice — 


144 


HEARING —JOSEPH M. DAY. 


[March, 


Q. — Were you present? A. —I was present,—was in the last 
part of Januar 3 r or February a 3 ~ear ago last January or February. 

Q. — Whether or not it was after proceedings had been commenced 
against Judge Day last winter ? 

Mr. Burdett. We will figure that up ourselves. 

Q. (By Mr. Harriman.) —Will you look at this paper? A .—I 
recognize it. 

Q. —From whom did } r ou receive that? A. — Judge Day. 

Mr. Harriman. I will read this right here : — 

“ Barnstable, Oct. 21,1880. 

“ Received of Charles F. Goodspeed, fifty dollars in full of all demands to 
date. 

“J. M. DAY.” 

Whether or not Judge Da} r performed any business for you except in 
behalf of your mother as administratrix and guardian? A. — Well, 
he performed— I had an interest in the property, and he performed 
it for m 3 T self, my brother, and m 3 T mother, altogether, the whole thing. 
We were all alike interested. 

Q. —You had no capacit 3 r to act, being a minor? A. — No, sir. 

Q. (By the Chairman.)— Was it all in regard to the estate? 
A. —Yes, sir. 

Q. (B3 t Mr. Harriman.) — Did 3 t ou have an 3 T conference with him 
except on that business with Col. Proctor? A. —Not to n^ knowl¬ 
edge. If he did any service for me, I don’t know it. 

Q. — What was it Judge Day said to you the last of January, the 
date when you said he was notified that he could no longer be coun¬ 
sel? A. — I think the question I asked him was, whether Proctor 
had any right to cut a large amount of wood on the premises before 
the interest had been paid on the mortgage ; and he said, provided the 
securities were not injured, he thought he had the right. 

Q . —Now, whether or not you discharged Judge Day as counsel, 
or he notified you that he could act as counsel no longer? 

Mr. Thompson. I object. 

Q . (By Mr. Harriman.) — Who terminated the relations between 
you and Judge Day? Whether it wa6 your own notion, or he noti¬ 
fied you ? 

Mr. Thompson. State what took place. 

Witness. I think he said that he didn’t care to have any thing 
more to do with the atfair. 

Q —Did he say any thing else at the time? A. —He said he was 
being hunted down, and persecuted, or something to that effect, and 
didn’t care to have any thing more to do with the matter. I cannot 
give his exact language. 

Q . — That was the last of January? A. — Or first of February. 


1882.] 


SENATE —No. 150. 


145 


Q' Of last year? A. —Yes, sir: I say that was the last inter¬ 
view. We had another interview later, when the mortgagor refused 
to do what he should do, and I said to proceed under his order. 

Q . (By Mr. Hill.)— Were any of these conferences with Judge 
Day after your mother was appointed administratrix and guardian ? 
A. — They were. 

Q • — And you had no conference with him before that time? A. 

No, sir: not in relation to this estate. We had in relation to 
some question as judge of probate : nothing to do in relation to this 
estate. 

Q. (By Mr. Thompson.) —What was that conference about? A. 

— We had some bank-books, and didn’t know exactly how they were 
to be divided; and we asked him upon that. That was all. 

Q . (By the Chairman.) — Mr. Goodspeed, did you pay that bill 
yourself? A .—I did. 

Q • — Was it for service to vou, for advice that you had received 
alone, or advice to you and others? A .—Advice to myself and 
others, as I understood it. 

Q- — Do you know of any other payment having been made by 
your mother or guardian outside of this? A. —No, sir. 

Cross-Examination. 

Q. (Bj r Mr. Burdett.) —Mr. Goodspeed, you were not a guar¬ 
dian or administrator? A. — No, sir. 

Q. —You were one of the minors under guardianship? A. — Yes, 
sir. 

Q. — There was a good deal of difficulty, wasn’t there, of various 
kinds, between you and Mr. Proctor? A. — Yes, sir. 

Q. — Didn’t he threaten you with criminal proceedings on account 
of getting money under false pretences? A. — He did. 

Q. — And you took advice of Judge Day ? A. — I did. 

Q. — Then, didn’t you consult Judge Day in relation to your rights 
in certain real estate? A. —I think so: I couldn’t be positive. 

Q. — And didn’t you consult him in regard to certain insurance 
matters in which 3011 were interested? A. — Yes, sir. 

Q. — Well, now, Mr. Goodspeed, didn’t 3 ’ou take a good deal of 
advice from Judge Day in relation to your own personal affairs? A. 

— Yes, sir, to m 3 ’ affairs. 

Q. — What did 3 ’ou sa 3 ’, Mr. Goodspeed ? A. — I did. 

Q. — He sa 3 ’s he did. A. —That is, the advice was given to me 
instead of m 3 ’ guardian: it was all the same thing. 

Q. —Your guardian didn’t go to him? A. — No, sir. 

Q. — You went personally? A. — Yes, sir. 

Q. — Now, do you remember during these conferences between 


146 


HEARING —JOSEPH M. DAY. [March, 


yourself, Mr. Proctor, and your mother, whether Judge Day didn’t at 
certain times say that he wished parties would employ counsel to 
attend to these matters without annoying him? A. — He did. 

Q. — More than once? A. — I think he did. 

Q .—That is to say, he urged all parties to go and get counsel 
instead of bothering him? A. — I think he did, towards the last of 
it, when the annoyance became too great to bear. 

Q. —It was annoying, then? A. —I should say it was. 

Q. — You went to him first because he was judge of probate? A. 
— Y r es, sir. 

Q. —You went with your troubles as a ward? A. — l r es, sir. 

Q. — Saying that this man Proctor was trying to wrong you and 
the estate? A. —Yes, sir. 

Q .—And you understood that Judge Day stood between you and 
this man Proctor? A. — Y'es, sir. 

Q .—Now, do you know of any thing paid by your mother or 
guardian to Judge Day for services rendered at that time? A. — No, 
sir, I do not. 

Q. —You say you saw Judge Da}' at any other times than during 
those conferences? A. — I think I did. 

Q. — About your own affairs? A. — About the affairs of the es¬ 
tate : they were all in common. 

Q. — Of course your affairs grew out of the estate? A. —Cer¬ 
tainly : they had their origin there. 

Q. — How many times did you go to Judge Day’s house? A. — 
I don’t remember. 

Q. —You went several times? A. — I think I did. 

Q. —And talked with him about these matters? A. —Yes, sir. 

Q.— Now, Mr. Goodspeed, during one or more of these conferences, 
in which Judge Day, as you understood it, was shielding yourself and 
mother from that man Proctor, didn’t Proctor make some suggestion 
about Judge Day acting as counsel in the case, and didn’t Judge Day 
say, “I am doing precisely what I should do for every widow and 
orphan who comes to me, and has no other assistance? ” A. —That 
is true. He said it in the strongest of terms. 

Q. — Did he say it more than once? A. — I don’t remember 
about that. 

Q. — You didn’t have any other counsel, did you ? A. — No other : 
we went to other lawyers for advice, but had no other regular coun¬ 
sel. 

Q .—Did you ever tell Judge Day that you had any advice from 
other lawyers ? A. — I did. 

Q . — Whom did you mention ? A. — Everett Robinson of Middle- 
borough, and Mr. Dickenson of Boston. 


1882.] 


SENATE —No. 150. 


147 


Q‘ —That was toward the end of these interviews, was it? A. — 
Dickenson was. 

Q' — Now, this man Proctor wanted }’our mother to give a war¬ 
ranty deed ? A. — He did. 

Q • — And you went to Judge Da} T , and asked him whether, as ad¬ 
ministratrix, she was bound to give it, and he said no, he had never 
heard of such a thing? A. —He did. 

Q • —And then he wanted your side of the controvers}’ to look the 
title up for him? A. — Proctor did. 

Q • — And then Judge Day told you no, that he must look up his 
own title? A. — Yes, sir. 

Q . — Do you remember, Mr. Goodspeed, the circumstances under 
which Judge Day wrote this receipt to be signed b}’ } T our mother as 
administratrix and guardian, dated July 10, 1880? A .—>1 think 
this was done, or rather written, at the time when the last payment 
was made and agreements finally signed. 

Q. —See if you recall these circumstances: that one da}’ before 
these agreements that you speak of were consummated and signed, 
Mr. Proctor had to leave on the half-past two o’clock train, and had 
but a short time left? A. —Yes. 

Q. — And whether or not you did not go to Judge Day, and ask 
him to make a receipt that would simply fix and bind the matter 
until it was finally fixed on Mr. Proctor’s return ? A. — We did. 

Q .—And he drew up this receipt, and it was signed, and subse¬ 
quently the agreement was consummated? A. —‘Yes, sir. 

Q. — So that it was a mere matter of convenience for all parties? 
A. —Yes, sir. 

Mr. Burdett. So much for that bugaboo. 

Q. (By the Chairman.)—D id Judge Day have an}’ thing to do 
with the agreement? A. —-He said he had got it written. I think 
his son wrote it. I am not positive. 

Q .—Who had charge, if anybody, of making that agreement on 
your behalf ? A. —Nobody else ; nobody else. He was the one we 
looked to, to have it drawn up correctly. 

Q. — How came you to pay this money? A. —‘He asked me for 
it. 

Q. — When ? A. — On the date of the receipt. 

Q .—Did he state what it was for? A. —*1 think he asked me if 
I could spare him a little money. I asked him bow much he wanted, 
and he said $50. I asked him if that paid for every thing; and he 
wrote that receipt, and I paid him the money. 

Q. (By Mr. Burdett.) —That was before he stated he wished 
parties would employ counsel and stop bothering him? A. —That 
w’as afterwards. . . 


148 


HEARING— JOSEPH M. DAY. [March, 


Q. — Which ? A. — This receipt. 

Q. —How long after? A. — It was in the fall, and I think the 
other was in July or August. 

Q. —That is, some months after? A. —Yes, sir. 

Re-direct. 

Q. (By Mr. Harriman.) —Mr. Goodspeed, Mr. Burdett asked 
you in relation to your consulting Judge Day about selling some real 
estate. What other real estate was that, — anj T thing except that 
sold to Col. Proctor by your mother and guardian? A. —None 
other. 

Q. — He spoke to you about consulting Judge Day with reference 
to insurance matters. What insurance was that? A. —The insur¬ 
ance on the property we sold him. 

Q. — This same property? A. — Yes, sir. 

Q .—This insurance business was all? nothing about 3011 person¬ 
ally? A. — No, sir. 

The Chairman. I think it appears clearly enough from the testi- 
mon} T of the witness, that whatever business he did was in relation 
to this estate. He so stated, and said it had nothing to do with any 
thing else. 

Q. (By Mr. Burdett.) — It appears that there was one item that 
he testified about in reference to Proctor’s threat to prosecute — 
A. —-That grew out of the real-estate matter. 

Q. — Didn’t that grow out of something that transpired between 
you and Proctor in reference to a contract? A. — Not the contract, 
but the bargain : it grew out of the whole affair. 

Mr. Burdett. I understand that his property and interest arise 
out of his father’s estate, and, of course, what property he had came 
originally from that source ; but it became his finally, and, when he 
was charged with a criminal act, it was not in reference to that 
estate. 

Q. (By the Chairman.) —Has there been any settlement of the 
estate with you as ward? A. —No, sir. 

Q. (By Mr. Harriman.)— In what you did with Col. Proctor, 
whether you were acting in behalf of yourself, or your mother and 
guardian, as representative? A. — I was acting in behalf of myself 
and mother and guardian. I was acting as her agent; and, of course, 
I was interested in the property myself. 

Mr. Thompson objected to this being received, unless it was shown 
that witness had communicated the special fact of his agency to 
Judge Day. 

The Chairman. It seems to me that your objection goes to the 
form, rather than the substance. I admit the question. 


1882.] 


SENATE —No. 150. 


149 


Q. (By Mr. Harriman.) — Whether or not you knew, as a minor, 
that 3’ou were incapable of making any contract that would be binding 
on j T ourself ? 

Mr. Thompson. I object decidedly to that. [Question ruled out.] 

Q. (By Mr. Harriman.) — Whether the indorsement of the pay¬ 
ment was made before the paper was signed, or not? whether the 
instrument was executed at the time of the indorsement of that 
paj’ment of mone3 7 upon it in the handwriting of Judge Day? A. — 
I don’t remember. 

Q. (B3- Mr. Burdett.) —Whether 3 r ou didn’t consult Judge Day 
in reference to 3’our father’s title to certain real estate with which 
Mr. Proctor had no connection, and concerning which Mr. Proctor 
had had no communication with you, and which was situated in 
Sandwich? A. — I don’t remember. 1 might have. 

Q • — Was there such property in Sandwich belonging to 3’our 
father at aii3 r time? A. — There was, and we had to consult Judge 
Da3 T about it. 

Q •—You don’t remember in reference to that title? A. —I do 
not. 

— You may have done, and ma3 7 not? A. —Yes, sir. 


SAMUEL SNOW. Sworn. 

Direct Examination. 

Q. (By Mr. Harriman.) —Your name is Samuel Snow? A .— 
Samuel Snow. 

Q. —And 3 r ou live where? A. — H3 T annis. 

Q. —You were a member of the Senate last year? A. — I was. 

Q. — Were 3011 acquainted with Levi L. Goodspeed? A. — I was 
well acquainted with him. 

Q. — And with his family? A. — I am. 

Q. —Whether or not you had any thing to do with the settlement 
of the estate ? A. — I have assisted them to the best of my abilit3 7 . 

Q. — Whether you have any knowledge of the affairs growing out 
of the agreement between Mrs. Goodspeed as administratrix and 
guardian, and Mr. Whitman as guardian, and Mr. Proctor? A. —I 
have consulted Judge Da3* several times, supposing that he was their 
counsel. 

Q. — Did 3 t ou ever consult him in the presence of Mrs. Goodspeed, 
or Charles, or Col. Proctor? A. — I have with Charles, and I have 
with Mr. Proctor, and I think in the presence of Mrs. Goodspeed. 

Q. — Whether you called to see Judge Da3 r and consult with him 
on that matter? A. — I have. Charles came to me with his troubles, 


150 HEARING —JOSEPH M. DAY. [March, 

and Mrs. Goodspeed asked me to help her in settling the estate ; and 
I went to him. 

Q. — Did you ask him an}- questions? A. —I did. 

Q. — Can you tell what they were? A. — I took them in short¬ 
hand— if I may be allowed to read them. This [showing small 
note-book] is my memorandum-book. I wrote the questions down, 
and then put the answers in afterwards. I have the answers,—part 
of them. 

Q. (By the Chairman.)—D id you put them down there at the 
time? A. —I did, as he gave them to me. 

Q. (By Mr. Harriman.) — What was the first question? A .— 
As I have it here — I wrote it in shorthand — [reading] : — 

“ Does it go on interest from, the time of tending the deed ? ” — “ No, sir.” — 
“No.” 

“ Can Proctor claim pay of Mrs. Goodspeed ? ” — 

Mr. Thompson. I don’t see how this can be competent, Mr. 

/ 

Chairman. He cannot put in merely notes, that he wrote at that 
time, as a regular record. He may use them to refresh his memory. 

The Chairman. I understood that these were the questions that 
he put to Judge Day, and the answers he received from him. 

Witness. That is so. 

Mr. Thompson. If this is the case, very well. If the writing 
was merely a jotting down to suggest what was said, or refresh his 
recollection, I should think proper to object to its going in like a full 
record. But if he says those are the questions and answers of Judge 
Da}*, I shall not object to them. 

The Chairman. That is the only ground upon which we admit 
them. 

Witness. These are the questions I wrote down from him. I 
live at Hyannis ; and Judge Day lives at Barnstable, five miles away. 
I took these questions down, before going to see him, in order to 
recall what the questions and answers were. 

Q. — Did you ask these questions? A. — I did. I put them 
exactly as they are. There [showing book] are the answers I put 
down at the time : — 

“ Can Proctor claim pay of Mrs. Goodspeed for the personal effects she took, 
if he backs out of the bargain ? ” A. — “ No.” 

“ Can there be an agreement made that will be binding, if the case comes to 
trial in the October term of the court ? ” A. — “ No.” 

“ Does the receipt given affect only the personal property, or both ? ” 

I have no answer to that question. Whether he gave an answer, I 
don’t know. There is one other question here that I have no answer 
to. I presume I asked it of him, but there is no answer. Why I 


1882.] 


SENATE —No. 150. 


151 


know that I asked those other questions is because 1 have written 
the answers down at the time. 

The Chairman. Don’t read them unless you recollect that } t ou 
asked them. 

Q . (By Mr. Harriman.)— Those all? A. —One other: “Can 
Proctor demand an abstract of Mrs. Goodspeed’s real estate before 
accepting the deed? ” He claimed that he should have an abstract — 

Mr. Thompson. I object. 

Q. (By Mr. Harriman.) —Did you have any other talk with him 
in regard to the agreement between Mrs. Goodspeed and Proctor, 
growing out of that agreement? A. — I did. 

Q. — Did he give you any advice? A. — He did. Mr. Proctor 
refused to stand by the agreement, and take the deeds and pay for 
them as agreed. Judge Day advised me to go and tender Proctor 
the deeds, and stated what to say when 1 tendered them. I took it 
down at the time, what he told me, in order to so state it to Mr. 
Proctor. 

Q. (By the Chairman.) — You mean the Goodspeed deeds, the 
administratrix’s deeds, or the guardian’s deeds? State what it was. 
A. — “ Take Mrs. Goodspeed and Mr. Whitman, — that is, Charles’s 
guardian, — either of them, or some one in their behalf, and carry 
the deeds to Mr. Proctor, and sa}’ to him that the guardian tenders 
those deeds and rewards of real estate sold, and read it. Deliver the 
deeds to him on payment of the consideration-money ; or, if he does 
not accept the deeds, or settlement is not made within thirty days of 
the last probate court, go and tender the above deeds just the same as 
you did before.” 

Q. (By Mr. Harriman.) —Did you do this? A. — I did. 

Q. — Under Judge Day’s advice? A. — I did. 

Q. —Col. Proctor receive them? A. — He did not. 

Q. — Did you tender them a second time? A. —I don’t remem¬ 
ber : I think I did. 

Q. — Did Col. Proctor ultimately receive the deeds? A. — I was 
present when Col. Proctor received those deeds. Whether I tendered 
them to him, or Judge Day tendered them as counsel, or acting as 
counsel, or any one else, I don’t know. 

Q .—Where were they delivered to him? A. — In Judge Day’s 
office of the probate office of Barnstable. 

Q. — Did there any other question arise after the delivery of the 
deeds, between Mrs. Goodspeed and the other guardian, growing out 
of that agreement, that you have any knowledge of? 

Mr. Thompson. That Mr. Snow knows of. 

Witness. There have been things arise — and they keep rising 
all the time. 


152 


HEARING —JOSEPH M. DAY. [March, 


Q. — Whether Judge Day had any thing to do with this? A. — I 
don’t remember consulting Judge Day since then, since the delivery 
of the deeds. 

Q. — Since the delivery of the deeds? A. — I remember of having 
a conversation with the judge after that. 

Q. — Please state what it was, if with reference to these matters? 

Q. (By Mr. Burdett.) —After what? A. — I can’t say when it 
was, or how it came about; but Charles told me — 

Mr. Burdett. No matter what Charles said. 

Witness. I knew how much Judge Day received: Charles told 
me — 

Mr. Thompson. I object to these answers, Mr. Chairman. 

The Chairman. State what was done simply. 

Witness. I said to Judge Day that Charles was very much 
pleased with what he had received for his services, that the} 7 were 
very low indeed ; and Judge Da}’ says to me, they were to receive a 
good deal more money, — several hundred dollars. 

Cross-Exam ination. 

Q . (By Mr. Burdett.) — Mr. Snow, what date did your memoran¬ 
dum to those questions and answers bear? A. — No date. 

Q. — When was it? A. — It was in the summer, July, August, or 
September of that year : 1880, I think it is, ’80 or ’81. 

Q. — Which was it, ’80 or ’81 ? A. — ’80. 

Q. —Mr. Snow, did you ever pay to Judge Day, for or on behalf 
of Mrs. Goodspeed or Mr. Whitman, any consideration of any kind 
for any service rendered by him? A. — Not one dollar. 

Q. — Did you ever know of Mrs. Goodspeed’s paying him one dol¬ 
lar? A. — Not one dollar. 

Q. — Or of Mr. Whitman’s paying him any money? A. —Not 
one dollar. 

Q. — Didn’t you at that time know that a judge of probate had no 
authority to act as counsel, administrator, or guardian in his court? 
A. — I did not. 

Q. — How many estates did you settle in his court? A. — Quite a 
number. 

Q. — Haven’t you been to Judge Day for advice in matters before 

this? A. —What do you refer to now? 

*/ 

Q. — I mean estates settling in his court. A. — Do you refer to 
the Ada Stevens case? 

Q. — I don’t refer to any particular case. A. — I was in the Ada 
Stevens estate — 

Q. — I am not asking you whether you have been to Judge Day, 
asking his advice in a fiduciary, trustee, or other special capacity, 


1882.] 


SENATE —No. 150. 


153 


but whether 3’ou have been to him before this case in matters similar 
to it? A. —I have spoken to Judge Da} r , and asked his opinion as 
judge of probate. 

Q- Have you frequently got his advice on estates in the course 
of settlement in his court? A. —Of course my relations with Judge 
Hay extend back fifteen years. 

Mr. Burdett. I object. If you can answer that question, do so. 

— I should say no. I might have been once a year for fifteen 
years ; because it covers that time, and it mav be forgotten. 

Q • — Then, during fifteen } T ears? Well, put it in this wa}’: You 
have been to him more or less for his advice concerning estates which 
were in process of settlement in his court? A. —I have. 

Q • — Will you say you have not been to him twent} T -five times? 
A. —I don’t think I have. 

Q- —Are you positive you haven’t? A. —No. 

Q • — Very well. Did 3’ou ever pa3' him a cent for any such ser¬ 
vice? A. — I never paid him but once, and that was in the Ada 
Stevens case, and that was in last 3 T ear’s hearing. 

Q — Yes. Did 3’ou ever suppose that when he was acting in his 
court that he would not give counsel? A. —I don’t suppose that I 
take his advice as counsel. 

Q . — You sa3 T 3^011 never did ? A. — I never did. 

Q. — Then why did you say so in this case ? A. — I may have 
said so, but I didn’t mean it. In an3 T case, I mean. He is asking 
me if I had any conference with Judge Day. I have asked him his 
opinion, but never went to him as counsel in the Ada Stevens case. 

Q. — Did you say that 3^011 consulted Judge Da3 r , supposing that he 
was counsel for the Goodspeeds? A. —I have. 

Q. — Then I ask you if 3 r ou ever supposed he was counsel for the 
other parties whose estates were in his court? A. —And I said, No. 

Q. —Then what did you suppose he was counsel in this case for? 
A. —Because the3 r went to him, and got the agreement: and then, 
when there was trouble, the3 7 went to him for advice, and I went with 
Charles to ask Judge Day r for advdce, and Charles did, in nry pres¬ 
ence ; and I supposed that the3’ went to him as counsel. 

Q .—You suppose you have done that thing at least twent3’-five 
times? A. —No, sir: I never asked Judge Da3 T such questions as 
were asked him in the Goodspeed case. 

Q. — Did an3 T such questions arise in an3 T other case of yours ? 
A. — No, sir : not that I know of. 

Q. — Didn’t 3*011 ask him such questions as did arise? — that came 
up in any case 30U had any thing to do with? A. — I did. 

Q. — What was the purpose 3’ou had in writing down the questions 
and answers you have read? A. — So that when I got to Barnstable, 


154 


HEARING —JOSEPH M. DAY. 


[March, 


and stepped into Judge Day’s office, I should know just what I wanted 
to ask him without trouble. There was no other way to do it. 

Q .—Did you ever make such a memorandum in similar cases 
before, of question and answer like this? A. — I am in the habit. 

Q. — You have done it before? A. — When I wish to ask a ques¬ 
tion, or rather when I go to Barnstable, as I do several times a week, 
I make a minute, so that when I get to Barnstable I need not forget. 

Q. — Have you any recollection of ever before making minutes of 
the exact questions which you asked Judge Day, and his replies to 
those questions, in any other case? Answer as directly as you can. 
A. — I cannot call to memory an} 7 case, but I think I can tell. 

Q. — You don’t recall any case? A. — I don’t recall now, so that 
I could swear to any one case. 

Q. — Have you any general recollection of any case in which you 
did the same thing? A. — I have no doubt I have. 

Q. — Have you any recollection of it? A. —I have no recollec¬ 
tion yet upon it; but I have done it. 

Q .—What do you found your opinion on? A. —My general 
habit. 

Q. — Your general habit? A. —Yes, sir. If I ask a lawyer his 
opinion, I want his answer in that way. 

Q. — Can you produce any questions and answers that you have 
made before? A. — I cannot now. I don’t remember any case. 
Perhaps I have them at home. 

Q .—Do you suppose, that by looking among your papers and 
books at home, or anywhere else, you can produce any other ques¬ 
tions and answers that you put to the judge of probate? A. — I can. 
I know a case where I did it, — asked the judge of probate, — and 
where I wrote the answer as I received it; and that is in the Ada 
Stevens case. 

Q. —That is one case? A. — Yes, sir : I can find it here, where I 
asked Judge Day, and took it down in writing, and read it. That’s a 
case to show I was in the habit of doing the thing. 

Q. — We take that for granted, — the Ada Stevens case, — and 
ask you if there is any other case in which you can find any memo¬ 
randum of a similar nature? A. —I don’t know. 

Q. — What do you think about it? A. —I have a good many 
memorandums at home, and piles of papers ; but whether I can find 
it or not, I don’t know. 

Q. — Do you think you could find any other questions? A. — No, 
sir : I should think it very doubtful: 

Q. — Then, your best judgment is, that you could not find any? 
A. —My best judgment is, that I should not be able to find them. 

Q . —• You are actively interested, are you not, in this prosecution 


1882.] 


SENATE —No. 150. 


155 


of Judge Da}'? A .—I cannot answer that. I have a very deep 
interest in this matter, if that answers the question. 

Q • — 1 will repeat the question: Are you actively interested in 
this prosecution of Judge Day? A. — I am deeplj' interested in this 
case. 

Q * — I understand 3 011 to 'say that }'ou understood Judge Da}’ to 
have written these agreements? A. — No, I didn’t. 1 wasn’t present. 

Q* — Did I understand that you said, or meant to say it— A. — 
I didn’t intend to say so. 

Q • —You didn’t mean to say? A. —I did not. 

Q • — Do you mean to say that those agreements were written by 
Judge Day? A .—They are not in his handwriting. I don’t know 
as I can give any more direct answer. 

The Chairman. I do not see that he can answer that more directly. 

Mr. Burdett. Why isn’t it competent for him to answer? 

Q. — When were you first consulted in relation to those Goodspeed 
matters, —towards the first of the troubles? A. —Mr. Proctor came 
down to West Barnstable to see the property, and I met them at West 
Barnstable. 

Q. —Just give the time. A. —1 should say it was in June: it 
might have been in May. 

Q. — Was that toward the last or first part of the trouble? Did 
you consult Judge Day before the trouble began, or towards the last 
part of it? A. — As soon as there was trouble, I consulted Judge 
Day. It was during the summer months, July or August, soon after 
the date of that agreement, —through July, August, or September, I 
conferred with Judge Day. 

Q. — When did the trouble begin ? A. — Somewhere through July. 

Q. —Mr. Snow, did you retain Judge Day to write any agreement? 
A. —I did not. I wasn’t present. 

Q. — Did any one to your knowledge? A. — Not to my knowl¬ 
edge. I always considered Judge Day a friend of the Goodspeed 
party, and to do the best he could for them. 

Q. —You understood Proctor was trying to wrong them? A. —I 
was somewhat — 

Q. —And that Judge Day stood between Proctor and them— A. 
— And got his pay from them. 

Q. (By Mr. Wadleigii.)—Y ou were asked if you were actively 
interested in this matter, and you answered in the affirmative? A. — 
That I was deeply interested. 

Q .—Now you may state the ground and nature of the interest 
which you have in this matter. 

Mr. Thompson. I certainly object. 

Mr. Wadleigii. What is the matter now? 


156 


HEARING —JOSEPH M. DAY. 


[March, 


Mr. Thompson. I have objected. [Not sustained.] 

Mr. Wadleigh. Now, state what it is. 

Witness. I am interested as a citizen of Barnstable Count}’, or 
an inhabitant of Cape Cod. 

Q .—Have you any personal reasons? A .—I have never had 
any altercation with Judge Day. 

Q. — What is the interest? 

Messrs. Thompson and Burdett objected. 

The Chairman. He has stated that. 

Q. (By Mr. Wadleigh.) —Well, is that all? I want the exact 
nature of the interest 30U have in this case, so that it may appear 
that it is no personal feeling at all. A. — I have stated it. I have 
never had any personal quarrel with Judge Day in my life; never 
been ill-treated by him in or out of court. 


JOSEPH L. PKOCTOR. Sworn. 

Direct Examination by Mr. Harriman. 

Q. — Your name is Joseph L. Proctor? A. — It is, sir. 

Q. —You live at West Barnstable? A. —Yes, sir. 

Q. —They call you “colonel,” Mr. Proctor. Where did that 
title come from? A. — I served eleven }’ears in the regular army, 
resigned in 1870, in the Eighteenth United States Infantry. 

Q. — And you are the gentleman referred to who purchased the 
farm of Levi L. Goodspeed? A. — I purchased the estate of Levi 
L. Goodspeed. 

Q. — Please look at that paper. [The agreement.] 

The Chairman. I think that agreement is referred to, and used 
so much, that the Committee would like to have it put into the case. 

Mr. Harriman. I was going to read it, and let the reporter copy it 
at his leisure. Here is the paper : — 

An Agreement made the Thirtieth Day of Jane , A.D. 1880, by and between the 

Subscribers hereto. 

« 

1st, I, Joseph L. Proctor of Mansfield, hereby agree to pay to Mary M. 
Goodspeed, administratrix of the estate of Levi L. Goodspeed, late of Barn¬ 
stable, deceased, the sum of one thousand dollars for the personal estate late of 
the said Levi L. Goodspeed, excepting one gold watch, the family pictures, the 
silver and plated ware, sewing-machine, table linen, and books, and all United 
States bonds, and all money, notes, and vessel property, and book-accounts, 
and interest in West Barnstable, said county, which articles are excepted from 
this purchase; and she is to deliver the articles purchased to me upon the com¬ 
pletion of the sales of the real estate to me, as hereinafter named; and should 
such sales of real estate not be made to me, I am to have the right to give up 
the purchase of the above personal property, and to reclaim any sum of money 
or other thing I may have paid on account thereof. And the said Mary M. 


1882.] 


SENATE—No. 150. 


15T 


Good speed may retain such of the above personal estate as I have agreed to 
purchase as she may choose, allowing me, therefore, one-lialf of its appraised 
value in the inventory of the estate of the said Levi L. Goodspeed. 

2d, I, the said Joseph L. Proctor, do hereby agree with the said Mary M. 
Goodspeed as guardian of George M. Goodspeed, a minor son of said Levi L , 
to purchase said minor’s interest, right, and title in and to so much of the real 
estate of the late Levi L. Goodspeed as is described in the following deeds (re¬ 
corded with Barnstable records, to which reference may be had for particular 
description): to wit, — 

A deed from Martha Crocker, recorded in Book 68, p. 61; a deed from Lydia 
P. Whitman, recorded in Book 74, p. 473; a deed from John Reed and others, 
recorded in Book 81, pp. 386, 387; a deed from Matthew Cobb, recorded in Book 
81, pp. 247-249; a deed from Walter Crocker, recorded in Book 91, p. 110; a deed 
from Joseph Jenkins, recorded in Book 102, p. 350; a deed from William Rob¬ 
inson, Executor, recorded in Book 97, pp. 242, 243, and a deed from Reuben Fish, 
recorded in Book 96, p. 494; a deed from Reuben Fish, recorded in Book 113, 
p. 533; a deed from Abijali Crosby, recorded in Book 118, p. 350; a deed from 
Asa Jenkins, recorded in Book 123, p. 86; a deed from James L. Lawrence, 
recorded in Book 123, p. 237; a deed from William Lawrence, recorded in Book 
128, pp. 203, 204; a deed from James Cornish, recorded in Book 127, pp. 490-492; 
a deed from William T. Bursley, recorded in Book 132, p. 181; a deed from heirs 
of Alexander Baxter, recorded in Book 138, pp. 273-276; and to pay her, the said 
guardian therefor, according to her said ward’s interest thereon, at the rate of 
five thousand dollars for the whole of said described real estate, including her 
right of dower therein. 

3d, I, the said Joseph L. Proctor, do hereby agree with Josiali B. Whitman as 
guardian of Charles F. Goodspeed, a minor son of said Levi L. Goodspeed, to 
purchase said minor’s right, title, and interest in and to the real estate of the 
said Levi L., described in the above second provision of this instrument, and to 
pay him therefor, according to his said ward’s interest, at the rate of five thou¬ 
sand dollars for the whole, as hereinbefore described, including the widow’s 
right of dower. 

4th, I, Mary M. Goodspeed, as administratrix widow and guardian, agree to 
execute the foregoing sales to Joseph L. Proctor, and for that purpose to execute 
any and all papers or deeds, including a deed of my right to dower in the real 
estate referred to. 

5th, I, Josiah B. Whitman, do hereby agree with the said Joseph L. Proctor 
to execute the foregoing sales to him so far as I am to do so as guardian of the 
said Charles F. Goodspeed. 

6th, It is understood and agreed by all parties hereto that the title to the 
real estate herein referred to is to be given by said guardian as soon as due 
proceedings can be had therefor. 

Witness our hands and seals. 

MARY M. GOODSPEED. (seal.] 

JOSIAH B. WHITMAN. [seal.] 

JOSEPH L. PROCTOR. [seal.] 

Barnstable, July 10, 1880. 

I have received of Joseph L. Proctor, in three payments heretofore made, on 
account of the foregoing contract on his part to be performed, the sum of four¬ 
teen hundred and twenty-five dollars on account of his purchase of personal 
and real estate. 

MARY M. GOODSPEED, 
Administratrix and Guardian . 


158 


HEARING —JOSEPH M. DAY. 


[March, 


Mr. Wadleigh. Inasmuch as in this agreement the contents have 
no bearing whatever on the matter of controversy, and the mere fact 
that whether there is such a paper—an agreement — is the only 
question, it does not seem to me that any thing in it could be impor¬ 
tant: I do not see why it cannot go in now in this way. 

The Chairman. Unless Mr. Thompson can show good ground to 
the contrary, the Committee will receive it. 

Mr. Thompson. It may be that we will be pleased to receive it. 

Q. (By Mr. Harriman, of witness.) —You have seen that paper? 
A. — I have. 

Q .—Is that the paper under which you purchased, or made the 
contract for purchase? A. — I made the contract of purchase; and 
the first paper was signed on the thirtieth day of June, 1880. I paid 
$900 at the time the paper was written; and, as $25 had been paid 
two days previous, they gave me a receipt for $925. That was on 
the thirtieth day of June, 1880. 

Q. — Is that the first paper? A. — No, sir, it is not. 

Q. —Please state wdiat became of the first paper? A. —The first 
paper was made out; and I left Barnstable on the evening train, 
about four o’clock. Judge Day wrote out the first paper, and said 
he couldn’t write the other copy, because he didn’t have time. He 
would see that it was taken care of, he said, and he would have tw r o 
other copies made in two weeks ; and I left it with him : but when I 
came down, in two weeks, they said to me that they had made a mis¬ 
take, and had included all the personal and real estate which they 
didn’t intend to sell; and they had this paper — 

Mr. Thompson. I object to any thing, except what was said in the 
presence of Judge Day. 

Q. (By Mr. Harriman.)— What took place? A. — Judge Day 
wrote it, —the first paper. 

Q. — What took place after you went down ? A. — I rode down in 
the afternoon with Mrs. Goodspeed and her son Charles. It was after 
court-hours, and we saw Judge Da}' at his house. He said he should 
not give his consent, as judge of probate, for the sale of that property 
for that amount of money. 

Q. —That is in the first agreement? A. — Yes, sir; because it 
included all his real estate. He called me out one side of the house, 
— we were sitting on the veranda in front, — and said, “ If you want 
to take $1,800 for your bargain, you can have it. There are parties 
that want to buy that farm for a school. The} 7 have had a meeting this 
last week.” I said I had sold my property in Mansfield, to come 
down here to live; and I didn’t want to part with it. 

Q. — Any thing said to you about your signing a new agreement 
in the place of the old one? A. — And then he said, if I would sign 


1882.] 


SENATE —No. 150. 


159 


a new agreement, and give up the old (they had this paper written 
out). So I decided to go down next day, and sign the paper ; and I 
did so. I gave them $500 more next morning ; so that the receipt 
was made out, $1,425. 

Q. — What was done with the first agreement? A .—Judge Day 
retained that. 

Q. —And that is what you are now acting on? A. — Yes, sir. 

Q. — Did questions arise between you and Mrs. Goodspeed and 
Mr. Whitman as to their rights? A. —There did. 

Q. —And whether or not } T ou went before Judge Day? A .—I 
did several times. 

Q. —And whether or not, in 3 T our presence, he gave them advice 
in reference to the matter? A. — He did frequently. 

Q. — In what respect? 

Mr. Thompson. I object. 

Q. (By Mr. Harriman.) —What was said? A. —I can’t recol¬ 
lect what he said. . 

Q. — What questions arose? 

Mr. Thompson. I object. Say what took place. 

A. — As I understood the agreement — 

Mr. Thompson. I object. 

Mr. Wadleigh. That is a mere preliminary matter. 

The Chairman. State what took place. A .—The controversy 
between the parties and myself was as to the amount of personal 
property. Judge Day told them I had no right to call for any thing 
more than what was on the place at the time. My understanding 
was — 

Mr. Thompson. I object to that. 

The Chairman. Tell what your understanding was ; what took 
place. 

Witness. I told him I expected I purchased this property as given 
in the inventory. 

Q. (By Mr. Harriman.) —And his reply, if any thing? A. — 
He said I could only claim what was there. 

Q, — Did }’ou sa 3 T any thing to him about the deed? A. — I did. 

Q, _What? A. — The 3 T told me that I could have a warranty 

deed. I told them I wanted a good deed, and they said I should have 
a warranty deed. 

Q. _Did you say any thing to Judge Day? A. — He said I could 

not have a warranty deed ; that he never had heard of one being given 
in a similar case. 

Q, _Did you sa 3 T an 3 T thing to him about an abstract of the title? 

_I did. They finally concluded they would give me an abstract 

of the title. ■ 


160 


HEARING —JOSEPH M. DAY. [March, 


Q. — Did you get it? A. — I did not. 

Q. —Did the judge say any thing about the title to }’ou ? A. — He 
told me that the title was perfect. He said he attended Goodspeed, 
and he knew the party and the title was beyond question. He would 
be willing to guarantee all but one piece of land purchased from James 
Cornish. Of the other, the title is perfect. I had some difficulty in 
getting some one to examine the title, as he was busy at the time. 
There was quite a number of pieces, and it would take some time to 
go over it. 

Q. —Whether or not you took Judge Day’s statement? A .—I 
took it that it was correct. 

Q. —Did it turn out to be so? 

The Chairman. How is that material, Mr. Harriman? 

Q. (By Mr. Harriman.) — How many different times were j T ou in 
Judge Da}’’s presence with the parties in reference to the matters 
growing out of that agreement? A . — I couldn’t state the number 
of times. I was quite frequently there those days. 

Q. — Whether or not Judge Day acted in all these interviews with 
reference to these matters as counsel? 

Mr. Thompson. I object to the question. 

Q. (By Mr. Harriman.) —Whether you know of Judge Day’s — 

Mr. Thompson. I certainly don’t want to see him prejudice this 
case by these questions, and the counsel has done it a number of 
times : it cannot result otherwise, if he persists. I object to his ask¬ 
ing in his question, “as counsel?” That is the question at issue. 
He keeps putting it in, “as counsel,” “ as attorne}",” etc. That is 
the question to be tried. 

Mr. Harriman. 1 will take the ruling of the Committee on that 
question. 

Mr. Wadleigh. 1 say he has the right to state it, and we have 
the right to put it in there. 

Mr. Thompson. He is not the judge in this case. 

Mr. Wadleigh. Mr. Chairman, they can cross-examine, and see 
whether he was correct or not. 

Mr. Thompson. The only question now — 

The Chairman. Wait a moment. 

Mr. Wadleigh. I beg pardon. 

The Chairman. The witness has stated what he did. We know 
that Judge Day is a lawyer; and I think that at least those of us 
on the Committee, who are attorneys and lawyers, would probably be 
able to draw a conclusion of our own without the aid of one from this 
witness. I shall sustain the objection, and not admit the question. 

Q. (By Mr. Thompson).— Just one question, Mr. Proctor. 
Whether Judge Day didn’t say in your presence, and in that of those 


1882.] 


SENATE—No. 150. 


161 


individuals, Mrs. Goodspeed, Charles F. Goodspeed, Mr. Whitman, 
that he was not acting as counsel of any of these parties? A. —Not 
that I recollect of. 

Q •—You don’t think he did? A. —I don’t think I ever heard 
him : I charged him with being counsel for the other side. 

Q • — Didn’t he say he wasn’t counsel? A. — We had considerable 
talk in the office, and his breath was quite strong — 

Mr. Burdett. Oh, no ! 

Mr. Thompson. Let it go in. It will show the spirit of this 
matter. 

Mr. Burdett. Now, I will ask you some questions, which I didn’t 
intend to ask. 

Q. —Didn’t you understand Judge Day at that time to den}' that 
he was counsel, in some form of words or expression? A. —I never 
understood him to say so. 

Q. — You heard Charles testify here, didn’t you? You heard 
young Goodspeed say this morning that Judge Day denied being 
counsel for his mother, in your presence, didn’t you? A. — I heard 
Mr. Goodspeed’s testimony, but I don’t remember. 

Mr. Burdett. Mr. Reporter, please turn to Mr. Goodspeed’s 
evidence. A. —You don’t know, then — 

The Chairman. I must sa} T that that wasn’t the understanding of 
the Committee, Mr. Burdett. 

Mr. Burdett. That Judge Day didn’t say whether he wasn’t 
counsel for any of the parties ? 

The Chairman. As I recollect the testimony, he told them that 
he didn’t want to. 

Mr. Burdett. My recollection of the question is this, — the ques¬ 
tion put to young Goodspeed, — 44 Don’t you remember, that, during 
one of these conferences between all the parties and Judge Da} r , that 
Mr. Proctor in some form charged Judge Day with being counsel for 
Mrs. Goodspeed, and that Judge Day told Mr. Proctor that he was 
doing in this case no more than he would do for any man or woman 
that came into his court without other assistance?” 

The Chairman. I remember part of that, but not all. 

Mr. Burdett. I ask this witness if he didn’t hear Mr. Good- 
speed’s evidence. [To witness.] Did you hear him say that, or 
not? A. —I don’t remember. I stepped out to the water-closet 
during his testimony. 

Q. — Now, let me ask you if you haven’t been a part} 7 to some¬ 
thing in the neighborhood of six or eight suits at law in Barnstable 
County, in every one of which Judge Day has appeared as counsel 
for the adverse party? A. —I don’t think I have. I think his son 
appeared. 


162 HEARING —JOSEPH M. DAY. [March, 

Q. — Well, he himself, or his son? A. —Well, I couldn’t say the 
exact number of cases he or his son have acted as counsel. 

Q. — In a large number of cases against you ? A. — Yes, sir. 

Q .—One other question : Whether there has not been a criminal 
prosecution against you in which Judge Day appeared as your prose¬ 
cutor? A. — There was ; and I defended it. 

Q. (By Mr. Harriman.) —What the result of that prosecution? 
A. — I beat him. 

Mr. Burdett. All the more reason that }-ou have a prejudice 
against Judge Day. 

Witness. I had a prejudice a year ago or more against him. 

Q. (By the Chairman.) —Will you state whether, in the settle¬ 
ment of this Goodspeed matter, any other attorney acted on behalf 
of the Goodspeeds, except Judge Day? A. —Not that I know of. 

FREEMAN H. LOTHROP. Recalled. 

Q. (By Mr. Harriman.) —Will 3-011 please look at 3 -our docket 
there, and state what it is? A. — Court of insolvenc}-, Barnstable 
Count}*. 

Q. — Will 3 -ou please refer to the case of Varanus B. Nickerson, 
and see if you find any such case there? 

Mr. Thompson. This is on the additional charge, I suppose? 

Mr. Harriman. This is the additional specification. 

Witness. I do, sir. 

Q. — What is the date of the petition in that case? It is in insol- 
venc} 7 , isn’t it? A. —Yes, sir. 

Q. —What is the date of the petition? A. —Varanus B. Nicker¬ 
son, filed August 23, 1864. 

Q. —Warrant issued? A. —Yes, sir. 

Q. —When? A. —On the 24th of August, 1864. 

Q. — Returnable when? A. —At one o’clock, Sept. 3. 

Q. — Who was it presented the motion ? A. — Thomas Harris. 

Q. —And the first publication? A. — Aug. 26, 1864. 

Q. —When was the first meeting? A. — 1864, Sept. 13 ; warrant 
and schedule returned. 

Q. —Whether any debts were proved? A. — “Debts proved 
against the separate estates of Varanus B. and Joel Nickerson.” 

Q .—Were any assignees appointed? A .—Prince S. Crowell of 
Dennis, and Ebenezer Bacon, chosen and ratified as assignee, — ex¬ 
cuse me, Ebenezer Bacon was chosen assignee. 

Q- — Whether there was any acceptance? A. —“Assignees ac¬ 
cepted said trust and assignment issued; warrant of appraisal 
issued.” 


1882.] 


SENATE —No. 150. 


163 


Q •—What is the next proceeding 3 r ou find in relation to the 
estate of Joel B. Nickerson? A. — Appeal from the decree of court, 
allowing bank of Cape Cod, etc., — filed. 

Q. —The next? A. — The next is under date Nov. 5, 1864. 
Warrant for the second meeting issued, dated Nov. 5, 1864, returna- 
able Nov. 23 at eleven o’clock a.m. 

Q. (By the Chairman.) —When was the warrant issued? A .— 
Warrant issued Sept. 13. 

Q. — I mean the warrant for the second meeting? A. —Nov. 5, 
1864. 

Q. — Returned ? A. — Returnable Nov. 23, 1864, at eleven o’clock 

A.M. 

Q. (By Mr. Harriman.) —The next proceeding? A. —Nov. 23, 

1864. Warrant for second meeting returned ; complied with. Debts 
proved against the separate estates of Joel and Varanus B. Nicker¬ 
son. 

Q. — With reference to the Varanus B. Nickerson estate? A .— 
That’s all in that date, sir. 

Q. — Any thing further? A. — Under date Jan. 10, 1865, petition 
to stay proceedings, filed Jan. 10, 1865. 

Q. — When returnable? A. —1865, Feb. 14, petition to stay 
proceedings returned ; order complied with. Ordered by the court 
that all proceedings in the said case of Joel Nickerson — 

Q .—I am not asking about Joel, but Varanus B. Nickerson. 
A. — Record Feb. 24, 1865, the petition to stay proceedings in the 
case of Varanus B. Nickerson, filed. 

Q. —Returnable when? A. — “Filed May,” it continues, — I 
think that was an erasure, — “ filed May 2, 1865, returnable May 16, 

1865, at twelve o’clock, noon,” but that whole statement comes un¬ 
der date of Feb. 24 in the record. 

Q. — Next. A. — “Ma}^16, 1865. Motion to stay proceedings 
returned ; order complied with. Ordered b}^ the court that all pro¬ 
ceedings in the case of V. B. Nickerson be vacated and stayed, as 
pra 3 ’ed for.” 

Q. — Have you papers in that case? A. —I haven’t, sir. 

Q. —Couldn’t you find them? A. —I could not. 

Q. —You searched for the papers? A. — I searched all the old 
records I could find in the probate office, but could find none in this 
case. 

Q. — Have you the present cash-docket? A. —I have, sir. 

Q .—Have you made search for any other cash-docket? A .—I 
have, sir. 

Q. — Have you found any in your search in the office? A .—X 
have never seen any, sir. I am not positive that there is none there. 
I have never seen any. 


164 HEARING —JOSEPH M. DAY. [March, 

Mr. Harriman. There is the present cash-docket [showing], if 
the Committee care to see it. 

Cross-Examination. 

Q. (By Mr. Burdett.) — You are unable to sa,y whether or not 
Mr. Thacher kept a cash-docket? A. — I am unable to say. 

Q. — Did you ever ask Mr. Thacher for it? A. — I haven’t, sir. 

Q. — Have } t ou ever written him to send } t ou a cash-docket? A. 
— I have not, sir. 

Q. —You spoke the other day when you were here — if I remember 
rightly — about Judge Da} r drawing his check for $300 to make up 
Mr. Thacker’s deficiency. Am I correct? A. — No, sir: I think I 
did say that I received from Mr. Day through his hands a check for 
something over $300. 

Q. — And } t ou don’t mean to say that that w r as his check? A. — 
Certainly not. 

Q. — Wasn’t it a check signed by one Morrison, and simply in¬ 
dorsed b}' Judge Day? A. —No, sir: if I can read from the cash- 
docket ? 

Q. —It w r asn’t drawn by Judge Day? A. — No, sir: it was pay¬ 
able to his order, and indorsed by him. It is the first entry on the 
docket there. It was the check of Isaac Thacher. The entry is : 1881, 
Oct. 25, balance due from Charles Thacher 2 d, late register, alleged 
as proven, amount undersigned, received by check of Isaac Thacher, 
payable to J. M. Da} r , $303. 

Q. — That is on the debtor side of 3 ’our cash account, is it? A. — 
Yes, sir. 

Q. — You don’t mean to sa 3 T of 3 T our own knowledge that one cent 
of that money belonged to Judge Day? A. — I didn’t suppose it to 
be. 

Q. — Did you know where it came from ? A. —I always supposed 
it came from a relative of Charles Thacher 2 d. 

Q. —Do you know who went as his bondsmen? A. —I have 
no personal knowledge. 

Q,. —Do you know whether Mr. Harriman was one? 

Mr. Harriman. I was. 

Witness. I know from hearsay, — Mr. Charles Nye. 

Q. (By Mr. Burdett to Mr. Harriman.) — There is no dispute 
about this, — that you threatened criminal proceedings against 
Thacher, and Judge Day found out what the deficiency was? 

Mr. Harriman would not answer, saying he was not on the stand. 

Q. (By Mr. Burdett to witness.)—Now, in relation to some of 
those cases 3 r ou spoke of the other day, Mr. Lothrop, is there any 
inventory in the case of the estate of Levi L. Goodspeed, so flu* as 
you know? A. —There has been none put in yet, sir. 


1882.] 


SENATE —No. 150. 


165 


Q* — Is there an}’, do you know? A. — I think there is an inven¬ 
tory returned in his case. 

Q' — Do you know where it is? A. —In the probate office at 
Barnstable. 

Q . — And 3 ’ou will furnish a certified cop } 7 of that, if we will send 
for it? A —Certainl}’, sir. 

Q •—You have furnished certified copies, haven’t you, to the 
parties in the case to which } t ou referred the other da}’? A. — Yes, 
sir. 

Q. — That is a deliberate answer, and covers by this witness the 
ground whether or not certain items exist or do not exist, because 
we can ascertain that on the examination of the copies you showed 
when you were here last time. A. — Yes, sir: I have sent copies, 
and the clerk of the Committee has received them. 

The Chairman. Those copies, you understand, will not be printed 
in the report. Those parts that you wish printed you must specifically 
offer. That rule will hold with both parties. 

Mr. Burdett. All I mean to say is this: when he went off the 
stand the other day with those papers, I desired to know if certain 
copies were to go into the case. 

The Chairman. I would like to ask the counsel for the petitioners, 
before this witness leaves the stand, if they are probably through with 
him ? 

Mr. Wadleigh. No, we are not: we shall be under the necessity 
of calling him again. 

The Chairman. Isn’t it possible to put all his evidence in at this 
time? 

Mr. Wadleigh. No, it is not, Mr. Chairman. 

The Chairman. The Committee prefer that the witness give all 
his evidence at the present time ; but, of course, if the counsel deem 
it necessary, even at another stage of the case, that this witness be 
called, I suppose the Committee would yield. 

Mr. Wadleigh. We shall not want to recall him, probably, until 
after the other side have put in their evidence. 

Q. (By Mr. Thompson.) —In the year 1862 what cases appear 
to have been entered on the insolvency docket, the first of the year, 
before the middle of August? A. — If the record is kept as it should 
be, by pages, the first petition in 1862 was that of James Baker of 
Dennis. 

Q. — What time was that? A. —April 1, 1862. 

Q. — Any other, near the middle of August? A. — Here is some¬ 
thing I should hardly want to swear to: On the 15th or 18th of 
August, petition filed, 1862, John W. Jarvis. 


166 


HEARING —JOSEPH M. DAY. [March, 


DANIEL A. GLEASON. Sworn. 

Q. (B 3 t Mr. IIarrimXn.) —You are the Treasurer of the State of 
Massachusetts? A. — lam. 

Q. — Have you the returns of the registers of insolvency of the 
different counties of the amount of fees which the} T are required to 
report and pay over to 3011 quarterly? A. —They are in my office. 
I have here all that I have received from the 3 ’ear 1874, and including 
such as have been received this year. 

Q .—Look at those from the register of probate for Barnstable 
County. A. [After examining papers.] —I find three returns on the 
file since 1874 from Barnstable County. 

Q. — Take the first one. A. — The first one is, “ Charles Thacher, 
2d, Jan. 6 , 1879.” That is the return of the register of insolvency 
of the fees received. The date is Jan. 6 , 1879. It gives the cases, 
the numbers, and the amount of fees to which the Commonwealth — 

Q. — Read all that there is in the account. A. [Reading] : — 

Office of the Court of Insolvency, 
Barnstable, Jan. 6, 1879. 

Hon. Charles Endicott, Treasurer, etc., of the Commonwealth. 

Sir, —Enclosed herewith find check No. 1,674 of First National Bank of Yar¬ 
mouth, on National Bank of Redemption, for twenty-nine dollars, the same 


being for fees due in the following insolvency cases: — 

Case No. 1. Josiah A. Chase of Provincetown. 

Dec. 2, 1878. Warrant issued.$5 00 

Dec. 23, 1878. First meeting.7 00 

Case No. 2. John Atkins of Provincetown. 

Dec. 10, 1878. Warrant issued.$5 00 

Dec. 23, 1878. First meeting.7 00 

Case No. 3. Allen S. Crowell of Dennis. 

Dec. 31, 1878. Warrant issued.$5 00 

$29 00 

Please acknowiedge receipt of same. 

Respectfully, 


CHARLES THACHER, 2d, Register. 

Q .—Is that account audited by the judge of probate at all? 
A. — There does not appear to be any audit on this account at all. 

Q. (By the Chairman.) —The first account, you refer to now? 
A. —This one account, which contains those three cases, — 1 , 2 , 3. 
The whole amount is $29. 

Q. (By Mr. Thompson.) — It is not on a blank, is it? It is writ¬ 
ten out entirely? A. — It is entirely written out. Shall I goon? 
[The Chairman assented.] The next return that I have is “ Free- 





1882.] 


SENATE —No. 150. 


167 


man H. Lotlirop, register of probate and insolvency.” The date of 
filing is not given. Nov. 25, 1881, is the date of examination and 
approval. That seems to be the only date it bears. Oh, no ! it is 
dated “ Barnstable, Nov. 25, 1881,” and is approved the same day. 

Q. (By the Chairman.) — Is that approved by the judge? A. — 
That is approved b}’ the judge of probate. Shall I read the whole 
of this as before ? 

Mr. Wadleigh. No : it is not necessary. 

Q. (By the Chairman.) —Does it give the date of all the different 
cases? A. —It gives the date of each case. 

Q . (By Mr. Wadleigh.) — What is the footing there? A. — The 
footing of the whole is $229. 

Q .—What is the date of the first case named? A. — The first 
case, — it is pretty hard to separate that: it gives the different pro¬ 
ceedings. The first case is “ Josiah A. Chase, Aug. 25, 1879, third 
meeting; Oct. 28, fourth meeting.” Then, the next case I see is 
“John Atkins, Aug. 25 ; ” and the next case, “Allen S. Crowell, 
June 9, 1879, third meeting.” They do not appear to be given in 
the order of dates. I should think, from the looks of it, that it was a 
copy from a memorandum docket, or something of that kind. 

Q. (By the Chairman.) —Can you tell what period of time that 
covers, Mr. Gleason? A. [Reading.] — “To cover fees to the 
Commonwealth in cases of insolvency in said county since the repeal 
of the United States Bankrupt Act,” etc. 

Q. (By Mr. Burdett.) —That was the 1st of September, 1878? 
A. — It was somewhere about that time. 

Mr. Wadleigh. I suppose there is no question, Mr. Chairman, 
that this covers the delinquencies of the former register, Charles 
Thacher, 2d? [To witness.] That is so, is it not, Mr. Gleason? 

Witness. I have no means of knowing. The Treasurer has noth¬ 
ing to do with these papers except to take them, and take the amount 
of mone} T that is remitted. He has no authority or power in regard 
to auditing or examining these returns. 

Q. (By Mr. Wadleigh.) —You find no return of the register, 
Charles Thacher, 2d, while he was register, audited by the court? 
A. — Nothing. I could look back farther. I began back only in 
1874. 

Q. —The law was suspended from 1867 to 1878, was it not? A. 
— It was suspended ; but I didn’t know how far the inquiry might be 
directed, and I merely took the files I could put my hand on easily. 

Q .—I believe you haven’t any papers prior to 1874, have you? 
A. — I have none here : I have them in the office. I merely took the 
files that I had at hand, not knowing how far the Committee might 
desire them. I will either produce the files of the returns made pre- 


168 


HEARING —JOSEPH M. DAY. [March, 


viously, or have one of m} T clerks make an abstract of them, which¬ 
ever the Committee may desire. 

Q. (By Mr. Thompson.) —The last return is written, isn’t it? It 
is not upon a printed blank. A. — Neither of them is printed. 

Q. (B}' the Chairman.) —If I understand 30111 ’ statement right, 
Mr. Gleason, it is that Mr. Thacher made no returns to you as regis¬ 
ter of probate and insolvenc } 7 since 1874, except in the 3 r ear 1879? 
A. —That is the onty one that I have upon the files. 

Q. — And that included fees in three cases only, amounting to $29 ? 
A. — Yes, sir. 

Q. (B} r Mr. Harriman.) —And the return of Mr. Lothrop cov¬ 
ers cases from what date? A. — It purports to cover all the fees 
received since the repeal of the United States Bankrupt Act. 

Q. — What is the date of the first case that he speaks of there? 
A. — As I said, I cannot tell }’ou that. The first case is the case of 
Josiah A. Chase, which was in 1879 (so returned), and is the third 
meeting and fourth meeting: but it is not the first case in the order 
of seniorit}^ neeessarilj 7 ; that is, it is the third meeting in that case. 

Q. —I wanted to get the first date. The date of the first case is 
Aug. 25, 1879? A. —Oh, no ! because here is “ E. and E. K. Cook 
& Co., May 3, 1879.” 

Q. (By the Chairman.) —The return purports to account for fees 
received since the repeal of the United States bankrupt law up to 
Nov. 25, 1881 ? A. — That is what the return sa 3 ’s. 

Q .—And that is all the account that }’Ou have from that court 
except the one of 1879? A .—That is the only account. I have 
one since that. There is one Jan. 5, 1882 : that is still later. 

Q. — Who is that rendered by? A .—That is rendered by Free¬ 
man H. Lothrop, and approved by the judge. It is approved Jan. 2 . 

Cross-Exam inatio n . 

Q. (By Mr. Thompson.) —IIow long have you been State Treas¬ 
urer? A. — Since January, 1881. 

Q. —Have you written to Judge Day with reference to statements 
not having been sent up from that court? A. — No, sir. 

Q. —Have } 7 ou called his attention in any manner to the fact? A. 
— No, sir. 

Q. — Have you written to the register of probate and insolvency of 
that county with reference to the matter? A. —No, sir. 

Q. —Or in any way called his attention to the fact that the returns 
had not been made from the same of the fees received in insolvency 
proceedings? A. — No, sir. It is no part of the Treasurer’s duty 
to do it. I don’t know of anybody whose duty it is to do it. 

Q. — To do what? A. — To require these returns to be made. 


1882.] 


SENATE —No. 150. 


169 


Mr. Harriman. I desire to read the law upon this matter : — 

‘ Sect. 138, chap. 157, of the Public Statutes. The register shall receive all 
fees, and keep a cash-docket of all cases in court, which shall, at all reasonable 
times, be open to the inspection of the public; and he shall account for and 
pay over the fees received to the Treasurer of the Commonwealth quarterly, on 
the first Mondays of January, April, July, and October, under the direction 
of the judge, who shall audit the register’s quarterly accounts, and direct W'hat 
sums shall be paid over.” 

That is a compilation of General Statutes, chap. 118, sect. 126; 
and statutes of 1862, chap. 137. So that that has been the law since 
1862. 

Mr. Wadleigh. The law of 1862 was in precisely the same words, 
I think, Mr. Chairman. 

Mr. Burdett. I merely want to call attention to the fact that this 
Act of 1862 was passed on the 25th of April of that year. That 
may be of importance hereafter. And it took effect, I suppose, in 
the absence of any provision to the contrary, on the twenty-fifth day 
of May, 1862. 


SMITH K. HOPKINS. Sworn. 

Q. (By Mr. Harriman.) — These are the dockets of the superior 
court, are the}’? [Presenting books.] A. —Yes, sir, those are the 
dockets. 

Q. —You are clerk of the superior and the supreme courts for the 
count}’ of Barnstable ? A. — I am, sir. 

The following extracts from the dockets were read : — 

“The docket of the Superior Court for the county of Barnstable for the 
year 1875. Case 103 on said docket. Joseph O. Baker against Joseph C. Law r - 
rence. Harriman is entered as counsel for the plaintiff, Day for the defend¬ 
ant. Declaration with writ. Appearance entered fourth day, and continued.” 

“ October term, same case. Additional entry, and only that, October, 1875, 
N. P. Day still remaining as counsel for the defendant.” 

“ Docket of the Superior Court for the county of Barnstable for the year 1867. 
Case of Varanus B Nickerson against Edward E. Crowell. Day for plaintiff, 
Higgins for defendant. Docket entries, declaration with writ. Appearance 
first day, and continued. Answer filed Feb. 14, 1868.” 

“ Docket of 1868, Superior Court for the county of Barnstable. Same case, 
April, 1868, continued. Aug. 25, 1868, plaintiff’s replication filed. Marston ap¬ 
pears with Higgins for defendant.” 

“ Docket for the same year, September term, additional entry, September, 
1868, continued.” 

“ Docket of 1869, same case, April, 1869. Referred to Robert M. Morse of 
West Roxbury, and Seth Crowell of Dennis, and John Eldredge of Yarmouth. 
Rule and copies issued. Referee’s award under seal, filed Sept. 6, 1869.” 

“ October term, 1869. Award opened and filed, and fees paid to clerk. 
Award accepted. Plaintiff to see costs.” 

“ October term, 1869. No additional entry.” 


170 


HEARING—JOSEPH M. DAY. 


[March, 


Q. — The writ in the case of Joseph O. Baker against Joseph C. 
Lawrence, dated Dec. 7, 1874, and entered at the April term, 1875 ; 
“The declaration is upon account annexed for the sum of $70.84” — 
groceries, the bill seems to be made up of. The appearance for the 
defendant is as follows : “ Superior Court, April term, 1875. Joseph 
O. Baker against Joseph C. Lawrence. I appear for defendant. J. 
M. Day.” In whose handwriting is that, Mr. Hopkins? A .— I 
should say it was Mr. Joseph M. Day’s. 

Q .—Do you find any other papers in that case except those? 
A. —No, sir : those are all there are in that. 


Q. — No answer filed in the case? A. — There doesn’t appear to 
be any. 

Q. — Look at the papers of the case of Yaranus B. Nickerson 
against Edward E. Crowell. [Witness produced papers.] Are 
these the papers in the case of Varanus B. Nickerson against 
Edward E. Crowell? A. —The}' are, sir. 

Mr. Harriman. The writ in this case is dated the twenty-seventh 
day of May, 1867, and returnable the first day of September, 1867. 
It is an action brought on a policy of marine insurance. I will read 
the declaration, and you can have the clerk copy it, or not. 

The Chairman. Why is it necessary ? 

Mr. Thompson. I cannot see any necessity for it. 

Mr. Harriman. 
have taken place. 

The Chairman. 

Mr. Harriman. 


I wanted to show when the loss was alleged to 


State it as it is in there. 

“ On the twenty-eighth day of February, 1861,” 
the loss is alleged to have taken place, — “totally wrecked and 
lost.” Appearance was entered by J. Higgins at the April term. 
The answer of the defendant, among other things, sets up this fact, 
which I wish to read : — 


“The defendants, upon tlieir information and belief, say that, since the loss 
alleged by the plaintiff, the plaintiff, being an insolvent debtor, made his peti¬ 
tion as such to the judge of the court of insolvency in and for the county of 
Barnstable; and thereupon such proceedings were had that all his estate and 
effects, and right of action, were duly assigned by said judge, in due course 
of law, to Ebenezer Bacon and Prince S. Crowell, as assignees in law in such 
case; and that said assignees, while they were duly acting as such, disposed 
of and transferred the claim of plaintiff, if any he had, in the premises, and 
the plaintiff has now no light of action in the premises; and the defendants, 
upon their information and belief, say, if it shall appear that the said assignees 
have not so disposed of and transferred the said claim of the plaintiff, the 
same remains with said assignees, and no suit thereon or therefor can be 
obtained except in the name of said assignees.” 

The Chairman. That answer is signed by whom ? 

Mr. Harriman. That is signed by George Marston and J. Hig- 


1882.] 


SENATE —No. 150. 


171 


gins, attorneys for defendants. To this answer a replication was 
filed Aug. 5, 1868. I will read this extract from the replication: — 

“ A-nd the plaintiff admits the proceedings in insolvency alleged by defend¬ 
ant, but denies that said assignees held or assigned the policy sued upon; and 
alleges, that before any sale, transfer, or assignment of said policy by said 
assignees, upon an application in due form of law, a decree was obtained from 
the.court of insolvency for the county of Barnstable, vacating the proceedings 
in insolvency before suit instituted by the plaintiff, and so the property in said 
policy revested in the plaintiff. The plaintiff denies that any payment, settle¬ 
ment, or adjustment of his claim was made as alleged by the defendants.” 

The Chairman. When was that filed? 

Mr. Harriman. Aug. 5, 1868. 

Mr. Wadleigh. By whom was that signed, if anybody? 

Mr. Harriman. That is signed “ Varanus B. Nickerson, by his 
attorne}^, J. M. Day.” 

Q .—In whose handwriting is that answer, Mr. Hopkins, if you 
know? A. — It is Mr. Day’s. 

Q. (By the Chairman.) — Were those all the papers in those two 
cases? A. —All that I discovered. 

Mr. Harriman. I would like to read the statute under which I 
claim that this evidence is material. It is a portion of sect. 21 of 
chap. 158 of the Public Statutes. 

“ No judge shall be retained or employed as counsel or attorney, either in or 
out of court, in any suit or matter which may depend on or in any way relate 
to a sentence, decision, warrant, order, or decree made or passed by him.” 

Mr. Thompson. We claim that that has no application at all to a 
case of this kind. 


FREEMAN H. LOTHROP. Recalled. 

Q. (By Mr. Harriman.) —Take the first case which occurred 
under Mr. Thacher as register of probate, and read the name of that 
case. 

Mr. Thompson. He can state in a general wa}*, if there are such 
cases, that he has examined, and finds that there are numerous cases. 

Q. — What cases were entered from the time that the law was 
revived in 1868 to the time you took possession of the office as regis¬ 
ter of probate? A. — I cannot answer that, sir. I can answer it in 
this way: I can tell what cases I returned to the Treasurer of the 
Commonwealth, and nearly all of them should have been returned 
before by Charles Thacher, 2d. 

Q. — Tell the first case that was put on the docket after Mr. 
Thacher became register. A .—I don’t know what time Mr. 
Thacher did become register. 


172 


HEARING —JOSEPH M. DAY. 


[March, 


Q. —The law did not go into force until 1868. A. — I understand. 
[Referring to record.] The first case is Josiah A. Chase of Province- 
town in 1878. 

Q. — And the next case? A. —John Atkins of Provincetown. 

Q. —-What date is that? A. —December, 1878. 

Q. (B} t the Chairman.) —Do I understand you to say, Mr. 
Lothrop, that no returns had been made by Mr. Thacher in those 
cases? A. —No, sir, I do not say so. Mr. Gleason testified to 
one return by Mr. Thacher. 

Q. —What do } r ou say in regard to those cases? A. —-I say that 
I found upon entering office that there were certain returns and cer¬ 
tain money to be returned to the Treasurer of the Commonwealth; 
that I found it by the list handed to me, written by Charles Thacher, 
2d, the former register; that I returned to the Treasurer of the Com¬ 
monwealth two hundred and twenty-nine dollars in such cases, — 
possibly five or ten dollars, possibly fifteen dollars, of it might have 
come under the time when I should make the return ; but over two 
hundred dollars should have been returned before I took the office. 

Q. —That list was furnished }’ou by Mr. Thacher? A. — It is in 
Mr. Thacher’s handwriting, and furnished to me, I think, by Mr. 
Day. 

Q. (By Mr. Harriman.) — Covering what period of time? A .— 
I returned ten dollars in the case of J. A. Chase, which is the case 
No. 1, and which was apparently ended — or the ending of any 
record in the docket is Oct. 28, 1879. 

Q. — Between what dates, during what time, did the settlement of 
these estates take place, — from what time to what time? A. — 
From Oct. 28, 1879, up to the date of my taking the office, in No¬ 
vember, 1881, I should suppose. I am not sufficiently Jamiliar with 
insolvency cases to know whether this “ Josiah A. Chase” case was 
closed or not from the entry. 

Q. — What is the entry? A. — “ Discharge refused.” 

Q. (By the Chairman.) — Allow me to call your attention, Mr. 
Witness, to the fact that your return sets out that it is “ for insol¬ 
vency cases from the repeal of the United States bankrupt law.” 
A. —Well, the first case since the repeal, before the insolvency court 
in Barnstable County, was this case which I speak of, — “ Josiah A. 
Chase.” 

Q. —Then those cases extend from that time, do the}’ not, up to 
the time that you were appointed register? A. —Yes, sir, I should 
say so; from Oct. 28, 1879, up to Nov. 1, 1881, which was the time 
I was appointed. 

Mr. Thompson. There is a mistake there, because he did receive 
money prior to Oct. 5, 1879. 


1882.] 


SENATE —No. 150. 


173 


Mr. Harriman. Mr. Thacher made one return, and then neglected 
to make returns after that, as appears from Mr. Gleason’s testimony 
here. 

The Chairman. I think the counsel on both sides will concede 
that this account rendered by him covered all insolvency fees which 
were received by that court up to the time when Mr. Lothrop was 
appointed register, with one exception, and that is the three cases in¬ 
cluded in Mr. Thacher’s account of 1879. That I understand to be 
the fact. 

Mr. Harriman. Yes, sir; and that most of the fees — all except 
fifteen dollars, as he sa} r s — were for cases that Mr. Thacher should 
have returned, and did not. He made the returns upon getting the 
money. That is what I wish to have appear. 

Q. (By the Chairman.) —Is that the fact, Mr. Lothrop? A .— 
That is the fact, that I made returns in thirteen cases. All of them — 
or all with certainly but two exceptions — should have been returned 
by Mr. Thacher, as appears from the record. 

Adjourned until Tuesday, March 7, at 10 o’clock, in Room 10. 


174 


HEARING —JOSEPH M. DAY. [March, 


SEVENTH HEARING. 


Boston, Room 10, State House, March 7. 

The Committee was called to order, and the hearing resumed by 
order of Senator Jennings, Chairman, at 10.15 a.m. 


BRADFORD L. CROCKER. Sworn. 

Direct Examination by Mr. Harriman. 

Q. — The record shows that Mr. Bradford L. Crocker and Mr. 
H iram Nye, on the 14th of Januaiy, 1868, were appointed executors 
of the will of Betsey Kelley, and their bond was approved Jan. 14, 
1868, as such executors. Where do you live, Mr. Crocker? A. — 
In East Boston. 

Q. —You are one of the gentlemen who were appointed executors 
of the will of Betsey Kelley? A. —I was. 

Q. — Do you know Judge Da}^? A. —I do, sir. 

Q. — And how many j^ears have you known him? A. — For, I 
should say, fifteen years certain. 

Q. —Whether or not any question arose in the settlement of 
that estate which gave you trouble? A. —There did : yes, sir. 

Q. — And to whom did you go with such questions? A. — I went 
first to Judge Day. 

Q. — Where did you see Judge Day about that? A. — In his 
office in Pemberton Square, and at the Parker House in this city. 

Q. —What took place between you and Judge Day at those inter¬ 
views? what talk did you have? A. — I asked his advice as to what 
course I should take as executor in regard to certain matters about 
the estate. Having called several times at his office, and not finding 
him in, I wrote to him, and got a reply that I could see him at the 
Parker House at such a day. 

Q. —Whether or not you met him there? A. — I did. 

Q. — And whether you had a consultation with him in regard to 
the matters involved in the estate ? A. — I did : yes, sir, — a short, 
very brief, consultation. 

Q. — Whether or not you paid him any mone}^? A. — I did. 

Q. —How much? A. — Five dollars only. I didn’t seem to get 
the information I required. I thought, and suggested to him, that 
perhaps I ought to pay him something for his trouble. I think I 



1882.] 


SENATE —No. 150. 


175 


asked him how much I should pay* him. He didn’t name any sum. 
I handed him five dollars, and he put it in his pocket. Afterwards 
I corresponded some with him, or had a letter from him. 

Q . — You say you had a letter from him in reference to the mat¬ 
ter — A. — I did, sir. 

Q. — Do you know where it is? A. — No, sir: I cannot find it. 
It was filed away with other papers. 

Q. — Have you made any effort to find it? A. —I have repeat¬ 
edly. I remember the letter distinctly, because I kept it until the 
estate was settled. I was careful to keep it. 

Q .—Then, why can y*ou not find it? A. —So long time has 
passed that I cannot find the papers. 

Q. —Now state what effort you made to find it, what search 3*011 
made, and where you have searched. A. — I have searched through¬ 
out the house, and all the old papers that I have, supposing at first, 
that, without doubt, I could find it, as I don’t practise destroying 
any such papers ; but I have not been able to find an 3 r of them. 

Q. —When did 3*011 see it last? A. — I think it may 7 have been 
ten 3 *ears since I saw it. The last I knew of it was in my safe at 
m 3 * place of business on Commercial Street. 

Q. —Have } T ou examined your safe for that letter? A. — We 
have: and I have exchanged safes since that time, so that it must 
have been removed ; but I don’t know of it since it was taken from 
the safe. 

Q. —Will 3 *ou please state what were the contents of that letter? 

A .—The principal point in the letter, and about the only idea, 
was, if I would pay a sum of money, he would have the matter set¬ 
tled with the other executor. 

Q. (By the Chairman.) —Who would? A. —Judge Day. The 
letter was from him, saying that he would have the matter settled 
with Mr. Nye, the other executor, if I would pay a certain sum of 
money*. 

Q. (By Mr. Harriman.) —Did he state to whom? A. —To 
himself. 

Q. — What was the amount of that sum of money? A. —I don’t 
remember, if it was stated. I am not certain if the amount was 
stated. 

Q .—Did }*ou pay him any other sum of money than the five dol¬ 
lars 3 *ou mention? A. —No, sir: I didn’t consult with him subse¬ 
quently 7 to that time. 

Q. — Whether you went to other counsel subsequent to that time ? 
A. — I did. 


176 


HEARING —JOSEPH M. DAY. [March, 


Cross-Examination. 

Q. (B}’ Mr. Thompson.) —Where did the party live, whose will 
you were executor of ? A. — In Hyannis, Barnstable Count}\ 

Q. — What was the question concerning which you were in doubt? 
A. —It was in regard to a portion of the real estate. 

Q .—Have 3 ’ou the will with you? A. —No, sir: I have no 
writing with me. 

Q. — Do 3 r ou know now, from recollection, what the provisions of 
the will are? A. —In general? 

Q. — In particular. A. —Perhaps definite^ enough to answer 
your purpose. I can tell what I remember of it. 

Q. — What was the precise question that 3 ’ou were in doubt about? 
Won’t 3 t ou state it to the Committee? A. —It was in regard to the 
barn belonging to the homestead. 

Q. — What about the barn? A. —It was found to set partially on 
the adjoining piece of land: perhaps from one to two feet over the 
bounds of the homestead. 

Q. — On whose land was it? A. — It was land that had been sold 
to a relative of the widow, b 3 T the name of Baker: I think Hen^ 
Baker owned it. 

Q. — Do 3 t ou know what disposition was made of the real estate ? 
A — Yes, sir. 

Q. — What disposition was made of the real estate? A. — It 
was given b 3 7 will to the missionary societ 3 r , — the Congregational 
Missionar 3 T Society; and the question in regard to the barn was — 

Q. — All of the real estate given to the missiomuy society? A. — 
Yes, sir: all the homestead. 

Q. —And the barn was what? A. — Was portion of the real 
estate. 

Q. — It was on the land that was given? A. — Yes, sir: part of 

t 

it was. 

Q. —Was there personal estate? A. —There was, sir. 

Q. — Enough to pay the debts? A. —Yes, sir. 

Q. — Won’t 3 ’ou tell what 3 t ou had to do with that real estate as 
executor ? A. — I had to see that it was taken care of. 

Q. — What right had you to attend to it? Didn’t 3 7 ou know that 
the will itself conveyed the real estate to the missionar 3 T societ 3 r , and 
that you had nothing to do with it at all? Did you understand that? 
— that the will itself conveyed the real estate to the missionary soci- 
et 3 T , as an 3 7 other conveyance, and that 3 t ou, as executor, had nothing 
to do with it? A. — I simply understood — 

Q . — No, no: answer me that. A. — I had no care of it what¬ 


ever. 


1882.] 


SENATE— No. 150. 


17T 


Q' — Nothing to do with the real estate? Didn’t you know that 
the establishment of the will was a convej'ance, the same as a deed, 
and conve 3 'ed the property to the missionary society, and that your 
whole business was with the personal estate, and that alone? A .— 
Do } T ou mean to ask me — 

Q •—No, no! I ask 3 ^ou if 3 ’ou didn’t know? A. —I don’t un¬ 
derstand the question. 

Q • —Didn’t 3 T ou know that 3 ’our business as executor was with the 
personal property, and not with the real estate? A. — No, sir, I did 
not. I did have something to do with it, with Judge Da 3 T ’s approval. 
I do know that. 

Q. —With this piece of real estate? A. —Yes, sir. 

Q. —What did 3 ’ou have to do with this piece of real estate? A. 
— I had the care of it, and to see that it was properly cared for and 
filial^’ conve 3 *ed. 

Q. — Combed? Did you make a deed of it? A. — It was 
final^ taken into the hands — 

Q. — Did you make a deed of it? A. —I signed some paper. 

Q. — I asked you if 3 ’ou made a deed of it? A. — No, sir. 

Q. — Wh 3 T didn’t you answer that question? A. —I didn’t think 
3 ’ou would understand me. 

Q. — I think I am able to understand. A. — I never made a deed 
in my life. 

Q. — So that you made no conve 3 ’ance of that ? A. — I think 
they had m 3 ’ signature to some paper, not a deed ; but the 3 " had pos¬ 
session— in just what way I am unable to sa 3 r . 

Q. — Who had possession of it? A. — The missionary society. 

Q. —Was there an 3 ^ thing said in the will as to when the 3 r should 
have possession of it? 

Mr. Thompson (to Chairman of Committee). It*seems to me 
that it is wholty useless to try to cross-examine the witness on this 
transaction until we see the will. 

Mr. Wadleigh. He sa 3 ’s he did it with Judge Da 3 T ’s approval. 

Mr. Thompson. Now, I am satisfied, from a conference with 
Judge Day, that this is a matter of that kind in which the Commit¬ 
tee can have no understanding of the situation of the estate until 
after seeing the will, and it will be clear when we show that he is 
mistaken entirety as to what he went to see the judge for. It will 
appear sufficientty on the face of the paper; but, with regard to other 
parties and afterwards, Judge Day brought writs of entry, which 
had nothing to do at all with the settlement of the estate, as an 
estate in the probate court, but simpty dealt with the property after 
it was combed by will; and that every thing Judge Day did in the 
matter was independent of the settling of the estate, and was only 
dealing with the real estate after it passed into other hands. 


178 


HEARING —JOSEPH M. DAY. [March, 


The Chairman. Is not that a matter of defence for you? 

Mr. Thompson. I supposed the Committee were anxious to get 
the facts, and the whole of them. 

The Chairman. Exactly ; and we rely on you to give us any facts 
that go to show that Judge Day ought not to be removed. The 
petitioners are not going to put in facts to show that he should be 
retained. 

Mr. Thompson. I supposed there would be a presumption that 
the} 7 were acting in the public interest; and I don’t know that this 
is —• 

Mr. Wadleigh. We flatter ourselves that this is just what we 
are doing. 

Mr. Thompson. I am pleased to know that he thinks it personal 
flattery to himself. 

I simply ask this of the Committee : that, before I proceed with 
the cross-examination of this witness, that I may get the will, and 
may make an examination of it. That will be brief, and will give 
the Committee clearly to understand the true situation that the wit¬ 
ness occupied. 

The Chairman. I don’t understand, Mr. Thompson, why you are 
not in a position to examine this witness. 

Mr. Thompson. Because we haven’t the records of the court, 
under which he is testifying now in regard to the will; and the Com¬ 
mittee must see that the will itself must determine whether he is 
correct or not. 

The Chairman. Not necessarily. His testimony on the direct 
examination simply was, that he consulted Judge Da} 7 as executor in 
regard to the estate, — this is the evidence on the direct examina¬ 
tion. All the rest you developed yourself. They didn’t develop it. 

Mr. Thompson. And then, when I came to ask him about it, he 
said he supposed it was in regard to the real estate ; and I supposed 
that the will would show that the executor had nothing to do with 
that part of it at all. 

The Chairman. That is a matter for you to introduce in the de¬ 
fence. 

Mr. Thompson. Now, the Committee can see perfectly well that 
the cross-examination of this witness without having the will here is 
likely to be not at all satisfactory to the one side or the other; but 
of course it is with the Committee, and not with me, to say. 

The Chairman. I think the ordinary method of procedure would 
be for you to finish the examination of the witness, and then bring 
the other points in as defence. 

Mr. Thompson. It will probably take me at least a day to cross- 
examine the witness without those facts, and probably it would not 


1882.] 


SENATE —No. 150. 


179 


take fifteen minutes with the facts. But I purpose to have the will 
repeated or produced. I intend to have it from him. 

Mr. W adleigh. It doesn’t appear, may it please the Chairman, 
but that this witness is able to tell the business on which he consulted 
Judge Daj 7 ; and what the particular provisions of the will are, it 
seems to me, makes no difference. He swears that he went to him 
as executor, that he consulted him as executor, and it was in refer¬ 
ence to his duties as executor. 

Mr. Thompson. They brought the bond of the administrator here. 
The} 7 could have had the will very convenienently here, if they saw 
fit to ; and I would like to know if they haven’t the will now? 

Mr. Harriman. No, sir, we haven’t. 

The Chairman. I think, Mr. Thompson, that I will ask you to 
proceed with the examination of the witness. Subsequently you can 
have the will here ; and, if you find it necessary to have the witness, 
we will have him here again. 

Mr. Thompson. Would it not be better to let it stand just as it 
is now, and then we may see whether — I shall certainly want to see 
him if X see the will. 

The Chairman. I don't see why your rights are not fully protected 
in this way. 

Mr. Thompson. The}' are, certainly. 

Q. (By Mr. Thompson.) —To whom was the real estate in the 
will given? A. (Witness.) —To the missionary society. 

Q. — Didn’t it go to the Evangelical Society of Hyannis? A. — 
I don’t remember the wording of the will. 

Q. —I am not asking you that, but if that property didn’t go to 
the Evangelical Society of Hyannis. A. — I think it was used as a 
parsonage of that society that — 

Q. — Don’t you remember that three deeds were made by the 
administratrix? A. —No, sir. 

Q. — Haven’t you any recollection about that? A. —No, sir. 

Q. — Don’t you know there was a contention as to the party that 
should hold that real estate? A. —I don’t claim to remember any 
thing special in regard to it — only a general idea. That hasn’t come 
to my mind for the past ten years. 

Q, _Then you haven’t thought this matter over for ten years? A. 

— No, sir. 

Q. — Not since that time ? A. — No, sir. 

Q. _And you are not particularly familiar now with the transac¬ 

tions of that estate, are you? A. — I don’t remember any sentence 
in the deed that I could repeat. 

Q, _Don’t you know that three deeds of that estate were found 

among Miss Kelley’s papers? A. — I thought I just answered that 
question. 


180 


HEARING —JOSEPH M. DAY. [March, 


Q. — I don’t know but 3-011 did, but won’t you just answer it again ? 
A. — I don’t know any thing about three deeds. 

Q .—Don’t } t ou know that Mr. N3'e, your co-executor, bought one 
of those pieces himself ? A. — I knew that he bought a piece of land 
that the barn stood on, a couple of feet, and claimed the barn, and 
moved it off, and called it his own; and that was one point of 
difference between the executors, and it was one point in regard to 
which I consulted Judge Da}-. 

Q .—And you thought it was a matter which concerned the execu¬ 
tors, who held the barn, didn’t you? A. —Certainty I did. 

Q. —What interest had the executors in the barn ? A. —The care 
of it. 

Q . —Did y-ou and Mr. Nye act together in this matter? A. —We 
did partialty. 

Q. — And there was no misunderstanding, was there, between you 
and Mr. Nye about it? A. — There was. 

Q .—Then, you didn’t act in harmony together? A. — Not en¬ 
tirety. 

Q. — What was the difficulty? A. —In regard to one point. 

Q. — What was it? A. —That he moved the barn from the home¬ 
stead on to his own land several rods distant, and used it as his own. 

Q. — Do you know where he got the land that he moved the barn 
on to? A. — He owned that before the executors were appointed. 

Q. — Did he get it from Miss Kelleys? A. —Quite likely he did. 

Q. — Do you know whether or not this was the same land covered 
by the will? A. —I know that the will had nothing to do with it. 

Q. — Do you know whether it was the same land covered by the 
will? A. — I stated at first that the barn stood over the boundaries 
a little, and for that reason Mr. Nye took the barn entirety off the 
land on which it stood, on to another spot on his own homestead. 

Q. —And Mr. Nye was, as you say-, one of the executors? A. —• 
He was. 

Q. — What business had you more with this barn than Mr. Nye? 
A. —I had no business so far as removing it. 

Q. — I know : but the care of it? A. —I don’t know that I was 
airy more responsible than he. I thought he was wrong — 

Mr. TuoMrsoN. I object to your answering in that way\ Didn’t 
he claim that the barn was his, as his property-? A. — Only so for 
the reason that it stood over the boundary- on the homestead — 

Q. —Did you understand him to claim, that, because he owned part 
of the piece of land on which the barn stood, that he could take the 
whole barn ? A. — I understood it so. 

Q. — And did you go and consult Judge Day as to whether he had 
the right to do that or not? A .—Do you mean to say — that was 
one point. 


1882.] 


SENATE —No. 150. 


181 


Q • —That was one point. You consulted Judge Day as to whether 
Mr. N}'e, having a small piece of the barn, had a right to remove the 
wdiole of it off the land. What was the next point that you consulted 
him on? A. —I consulted him in regard to my general course. 

Q. —What was the next point? A. — I have no other special 
point in my mind now. 

Q. —Then, if you haven’t, } r ou cannot testify. So that, so far as 
you remember, }’ou consulted him regarding that? Is that it,—that, 
so far as you remember now, that was what you consulted him about? 
And you have no recollection of anything else now? A .—That 
was in m} T mind as the most objectionable point, in regard to any 
question between Mr. Nye and myself; but I wanted to know from 
him m} r course as executor. 

Q. (By the Chairman.) —From whom? A. —From Judge Day. 
That was m} r object in going to him. 

Q. (By Mr. Thompson.) —As to what matter? A. —The settle¬ 
ment. I say I had no special point. 

Q. —That was all? A. — No, that wasn’t all then. 

Q. — Can you give some idea about something else? A. —There 
was something. 

Q. — You didn’t ask him whether you had got to render an account 
or not? A. — I asked him in regard to it. 

Q — Perhaps 3*011 did. Ever been executor before? A. — No, sir. 
I asked him in regard to my duties as executor. 

Q. — And you and Nye had a quarrel? A. —No, sir: that was 
latterly. I consulted with Mr. Day before that; but that was on a 
different point. 

Q. —Before what? A. — Before the barn was removed. 

Q. — Before that? A. —Yes, sir. 

Q. —Didn’t you know any thing about the relation between the 
Evangelical Societ} r of tfyannis— A. —Yes, sir. 

Q. —Didn’t you know that name was in the will? A. —Certainly, 
I did. The missionary society and the Congregational Society are 
the — 

Mr. Thompson. I am not asking you about that — 

Witness. Will you let me explain? The Congregational Soci¬ 
ety of Hyannis, and the missionary society, I speak of them as one. 

How thev were mentioned in the deed, I don’t know. I am not posi- 
«/ 

tive that they were mentioned in the deed ; but the fact was, that 
they eventually acted for the Congregational Society at Hyannis. 

Q. (By the Chairman.) —Do you mean deed or will? A. — 
Will, I meant. It was given as a parsonage ; and just how the mis¬ 
sionary society was called to act, I don’t remember. 

Q. (By Mr. Thompson.) —Well, now, sir, was it to go to the 


182 


HEARING —JOSEPH M. DAY. 


[March, 


Evangelical Society of Hyannis on certain conditions? and then, if 
those conditions were not complied with, wasn’t it to go to the 
Home Missionary Society ? A. — I cannot say but it was : I don’t 
remember distinctly^. 

Q. —And don’t 3XH1 know that the trouble was between the gran¬ 
tees in certain deeds, namely, Cyrus A. Baker, David W. Johnson, 
and William G. Baker, and with Hiram Nye as the grantee of John¬ 
son and the Home Missionary Societ} 7 ? Wasn’t that it and were not 
those the conditions? A. —I don’t know any thing about the condi¬ 
tions between those parties. 

Q. —Didn’t you know that Judge Da} 7 brought three writs of entry 
w r ith reference to that real estate? A. — I don’t think I did. 

Q. —Won’t you Uy to refresh your recollection, if you didn’t un¬ 
derstand about this contest on the real estate? A. — He may have 
been consulted about it by other parties. 

Q .—lam asking now about three writs of entry? A. — I don’t 
recall. 

Q. *—Well, you don’t remember much about the real estate, do 
ybu ? A. — Only in a general way. 

Q. — Didn’t j’ou have any thing to do with it — with the writs of 
entry? A. — Those parties } T ou have referred to were the owners of 
the land, and Mr. Nj r e bought (after he became executor) and 
claimed the barn on account of buying the adjoining piece of land. 

Q. —Don’t you know that Mr. Nye came in as grantee under the 
deed from Mrs. Kelley, after the death of Miss Kelley? A .—In 
what way? 

Q. — As grantee of Johnson, — of David W. Johnson. Didn’t 
you know that? Didn’t you know that Mr. Nye claimed as grantee 
of David W. Johnson? Now, do you understand b} r that that he 
bought the land of Johnson? A. —Yes: quite likely". 

Q. —And claimed the barn on account of having bought that land 
of Johnson? A. —That is what I meant to say. 

Q. —What? A. — On account of buying the land. A small por¬ 
tion of the barn stood upon it, and he claimed the barn. Before he 
bought the barn, he was on my side ; after he bought the land, he 
saw it in a different light. It was on account of that difference. 

Q. —Didn’t you know that Judge Day, by writ of entry, covered 
that very piece of land that Nye said he bought of Johnson? A. — 
I did not. 

/ 

Q. —Don’t you know that fact, that that very piece of land that 
Judge Da} 7 covered by a writ of entry in favor of the Home Mission¬ 
ary Society? A. — I don’t know what he did for them or for Mr. 
Nye, or with them. I never learned. He was very evasive, and 
didn’t communicate with me. 


1882.] 


SENATE —No. 150. 


183 


Q • — He didn’t say* much about real estate at all, did he? A. — 
No, sir. 

Q- — Didn’t you say to him that you had enough to do without the 
real estate at all? A. —No, sir. 

Q . — What did he tell 3*ou 3*0111* rights were in the real estate? A. 

— Perhaps he didn’t tell me that: I have no recollection. 

Q . —-You have no recollection that 3*011 had an3 r rights in the real 
estate? A. —No. 

Q !. — Have you an3 T recollection of what he told 3*011 at all? A. — 
Not very definite — haven’t an3 r . 

Q. — Have 3*011 an3* recollection of w r hat he told you at all ? A. — 
I don’t think he gave me an3 T opinion of any value at all. 

Q. — So he didn’t advise you at all about it, did he? A. — I 
shouldn’t want to sa3^ that. 

The Chairman. He didn’t say that. 

Mr. Thompson. I ask him now what advice he did give him? A. 

— He advised me to go to Mr. Nye, and have an understanding, etc. 
I told him I could not have an understanding with Mr. Nye. I told 
him where our differences were, and asked him w T hat course should be 
taken. 

Q. —What did he tell you? A. —I don’t think he gave me any 
definite course to take ; but I did consult another lawyer. I don’t 
remember whether it was — but I don’t think he suggested it. 

Q. — What sum of mone3* were 3*011 to pa3 T to get the whole matter 
settled,—the sum he suggested? A. —I don’t know that the sum 
was stated. 

Q. —What was the money to be paid for? A .—For his settling 

— making a settlement. 

Q. (By the Chairman.) — Who w*as to settle ? A. —Judge Da3* : 
it was a proposition from him to settle satisfactorily. 

Q. (By Mr. Thompson.) —To settle what? A. — The matter of 
difference between the two executors, Mr. Nye and n^’self. He 
would have had the claim satisfied if I paid a sum of mone3 T . 

Q. — What was the matter of difference? A. —That I have men¬ 
tioned was the principal matter. 

Q .—The real estate, then? A. —Yes: he had the care of the 
estate ; and I think Mr. Nye received rents, and took care of it, and 
didn’t render an account, as I think he suggested. 

Q .—And you supposed that he was bound to render an account 
of the income from the real estate, didn’t you ? A. —I did. 

Q .—Who did you get that from? A. —Judge Day agreed with 
me. 

Q .—How long were 3*011 in the settlement of this estate? A. — 
I should think two or three years before it was settled. 


184 


HEARING —JOSEPH M. DAY. [March, 


Q. — Did 3 r ou ever receive any thing from the estate? A .— I 
think in the final settlement — 

Q. — I ask you if you ever received anything? A. —From the 
proceeds of the estate ? 

Q. — Yes. A. — No, sir. 

Q. — Did } T ou know any thing at all with regard to the manage¬ 
ment of the real estate of your own personal knowledge and care of 
it? A. —Yes. 

Q. — Did you have any thing to do with it personalty ? A. —Yes, 
sir. 

Q. — How often were you down to the Cape? A. — Perhaps twice 
a 3 T ear ; perhaps oftener. 

The Chairman. I don’t see how all this that 3 T ou are putting in 
is material. 

Mr. Burdett. That is the result of not having the facts of the 
will. 

The Chairman. I don’t see how it is material under any set of 
facts. This man says he went to Judge Da3^, and consulted him as 
executor in regard to the estate. 

Mr. Burdett. And we have shown that he didn’t do any thing 
of the sort, but that he consulted him in regard to certain real 
estate. 

Mr. Wadleigh. He consulted him as to what he should do as 
executor — 

Mr. Thompson. With regard to the real estate. 

Mr. Wadleigh. He didn’t sa3 T that was the only thing, Mr. 
Chairman. 

Q. (B3 r Mr. Thompson.) — What did 3 T ou do with reference to the 
real estate itself? 

The Chairman. What difference does it make as to what he did 
with reference to the real estate ? 

Mr. Thompson. Because I am trying to show by his own words, 
that he had nothing to do with it; and that it must be a mistake on 
his part when he sa3 r s he was consulting in regard to real estate, 
which it didn’t belong to him to be charged in any particular with 
— that his mind is oblivious to the whole matter. 

Mr. Wadleigh. He sa3’s that he went— 

The Chairman. One moment. So far as his testimo^' show’s 
that he consulted him in regard to real estate at all, the points are 
clear. He says, Mr. Nye, the other executor, moved the barn off 
the estate, which he thought he ought not to do, and that he con¬ 
sulted Judge Day in reference to that. Now, that is the point, if I 
understand the testimony at all, around w r hich all your questions 
have circled. 


1882.] 


SENATE —No. 150. 


185 


Mr. Thompson. It is with regard to the real estate, that is all. 

Mr. Wadleigh. He went to see Judge Day as to what his duties 
were as executor ; he went to see Judge Day for that purpose. 

The Chairman. It seems to me that the line you are following 
now, Mr. Thompson, does not bring any material facts to enlighten 
us, except in respect to that single point. 

Mr. Thompson. I supposed the whole transaction was important. 

Q. (By Mr. Thompson.) —Do you know how the Home Mission¬ 
ary Society got possession of that real estate? A. — I do not 
distinctly. 

Q‘ —You don’t know? A. —I know the executors had the 
entire care of it for at least two years. They received the rent, and 
finally it went into the hands of the missionary society for the bene¬ 
fit of the Evangelical Church at Hyannis. 

Q .—When did the personal estate go? A. — That went as 
directed by the will. 

Q. — Do you know whether or not Mr. Nye was acting for the 
Home Missionary Society in what he did in the care of the estate? 
A. — Subsequently he did act, I think, under their direction. 

Q. — He did. And don’t you know that the grantees of those 
three deeds went directly into the possession of the estate, and kept 
possession of it until after the determination of the writs of entry? 

Mr. Wadleigh. What has that got to do with it, Mr. Chairman? 

Mr. Thompson. If he doesn’t know now that the grantees under 
the deeds from Mrs. Kelley entered immediately upqn her death 
into the possession, and kept possession of it until the determination 
of the writs of entry. 

The Chairman. I do not see how it is material. Still, the wit¬ 
ness may answer the question. 

A. —I had the care of it: thev did not, and had no care of it for 

«/ ' 

two years. 

Q. (By Mr. Thompson.) —From whom did you receive any rents? 
A. — I think the rents ivere paid — 

Mr. Thompson. I ask you from whom — 

Witness. I think they were paid entirely to Mr. Nye. 

Q. —Did you ever receive a cent personally? A. —I don’t 
remember that I did. Hd^let it with my approval. I knew what was 
being done. 

Q. — Will you say, sir, now, that Cyrus A. Baker and William G. 
Baker didn’t go into possession of portions of that real estate upon 
the death of Mrs. Kelley? A. —That is what I said. 

Q. — And you never heard that they had taken possession? A. — 
Of the estate, of the homestead? 

Q. —Yes. A. — I never knew that the}’ did any thing of the 
kind. 


186 


HEARING —JOSEPH M. DAY. [March, 


Q. — Never knew that the}’ had any deeds of Betsey Kelley’s estate 
at all? A. — I am not speaking of the adjoining piece of land. I 
have spoken in regard to the homestead land. 

Q. — As to the deeds found in your possession after she died. 
Do you know any thing o’f that? A. —My mind is wholly on the 
homestead given to the Evangelical Society. 

Q. — About the whole of the real estate. That was given by 
deed to whom? A. — Baker and Johnson — I don’t remember dis¬ 
tinctly how. 

Q. —Didn’t they enter into possession of it then, so far as that 
goes, before? 

Mr. Wadleigh. Do you mean the adjoining real estate? 

Mr. Thompson. No, I mean of the real estate. 

Witness. No, sir; portions of her real estate. 

Mr. Wadleigh. He says a portion was deeded, and a portion was 
not; but your question covers the whole. 

Mr. Thompson. No, sir. 

Mr. Wadleigh. You ask him in such a way that he may suppose 
it covers it. 

Q. (By Mr. Thompson.) — Then you mean to say that all you 
have charge of is the homestead? A. — Yes, sir. 

Q. — How much did that consist of? 

The Chairman. How is that material? 

Mr. Thompson. I wanted to see how much attention was required 
for it under the — 

Witness. The land was on the corner of two streets. 

Q. (By Mr. Thompson.) — A small lot? A. — No, sir : one hun¬ 
dred feet or more on the main street, and one hundred or more on a 
side street. 

Q. —Have you a copy of your account as executor? A. —I have 
no papers with me. 

Q. — And don’t you know when you rendered that account? A. — 
No, sir. 

Q. — Have you, Mr. Wadleigh, those accounts? 

Mr. Wadleigh. No, sir, we have not. We suppose, of course, 
they are on the files of the court. 

Mr. Thompson. I don’t know that I will ask any further ques¬ 
tions. 

Q. (By Mr. Thayer of the Committee.)—You didn’t get from 
Judge Day, at Parker’s hotel, such advice as you thought was proper? 
that is, the advice didn’t satisfy your desire, did it? A. —No, sir: 
it didn’t make my way clear. 

Q.—Did you express to him your dissatisfaction with his status 
of things, or say that you thought you should look further, or any 
thing of that kind ? A. — I don’t remember that I did. 


1882.] 


SENATE —No. 150. 


187 


Q • — He didn’t ask you any thing? You consulted him brief!}', and 
then gave him five dollars? A. —Yes, sir: I offered it to him. 

Q •—That is, at the parting? A. — Yes, sir: I am not certain 
of that. It was during our interview that I gave it to him. 

Q‘ — Well, now, the next thing you heard from him, I understand 
you to say, was, that he wrote you a letter, of which the substance 
was, that, if you would pay him a certain amount of money, he 
would make it all right with N}'e? A. — Yes, sir. 

Q (•— And the amount of money wasn’t stated? A. — If it was 
stated, I don’t remember the amount. 

Q • — It wasn’t stated, } t ou sa}^? A. — I think not. It may have 
been, but I think not. 

Q • — That was the first thing that occurred since the time }'Ou and 
he parted? A. —No, sir: I didn’t say that. 

Q. — Had you any other interview ? A. — That was subsequent. 

Q. — It was after you and he had the talk at Parker’s, when you 
were not satisfied with what he said? The next thing was, } r ou re¬ 
ceived this letter before you saw him or heard from him otherwise? 
A. — My impression was, that, when I saw him at Parker’s, this 
difficulty hadn’t come up in regard to the barn. That didn’t come 
up for one or two years or more before it was removed, and I was 
tiding to ascertain then what I should do as executor. The house — 

Q. — Then you — 

Mr. Wadleigh. Let him finish the answer. 

Mr. Thayer. I will ask the question as I like, if you will allow 
me. 

Mr. Wadleigh. I insist that he shall be allowed to finish his an¬ 
swer. He was going on to reply. 

Mr. Thayer. Not until I ask the question. I supposed he had 
answered all that was responsive to the question. 

Mr. Wadleigh. I understood him to be answering } r our question 
when he was interrupted. 

The Chairman. Proceed, Mr. Thayer. Opportunity will be given 
counsel to examine the witness. 

Q. (By Mr. Thayer.) —I understand }'ou to say that you were 
not satisfied with the advice he gave you at Parker’s, and that you 
went elsewhere and got advice? A. — I didn’t intend to say that. 
I meant to say I didn’t get the information necessaiy to know what 
course to take. I didn’t at any time tell him that I was dissatisfied 
with any thing that he said to me. It was the want of information. 

Q, _You didn’t tell him that you were not satisfied. A. — It was 

not necessary. 

Q. (By Mr. Thompson.) —Now, in that conversation at Parker’s, 
didn’t you consult him on the barn business ? A. — I don’t think I did. 


188 


HEARING - JOSEPH M. DAY. [March, 


Q. — Nothing said at that interview about it? A. — I think not. 

Q .—And had you seen him from that time, to consult with him 
up to the time that he wrote 3*ou? A. — I may and may not have 
seen him. 

Q. —What is 3*our best recollection? A .—I think very probably 
I had seen him. I saw him repeatedly at his office in Pemberton 
Square in regard to it. 

Q. — Between those times? A. — It is very probable I had. 

Q. — How soon, after 3-011 consulted him at Parker’s, was it that 
you got the other counsel? A .—Legal advice? 

Q. — Yes. A. —I onty know that it was subsequent to that time. 

Q. — Can you give us ai^ idea how soon after? A. — No, sir: 
I don’t think I can. I didn’t know that Judge Day was under 
obligation to advise or direct me until I saw Judge Miller of Ware- 
ham. 

Q. —Judge of the probate court? A. —Yes, sir. 

Q. —You didn’t know that Judge Da} r was under obligation to 
advise 3 t ou till Judge Miller of Wareham told 3*011 so? A. — I 
remember that he told me that that information Judge Day should 
give me. That was the impression on my mind. 

Q. — Was that counsel that you got after 3*011 went to Judge 
Day ? A. — Yes, sir. 

Q. —You went to another judge of probate? A. —Not as judge 
of probate, — as counsel. 

Q. —In making out your account, did you charge this five dollars 
that you gave Judge Da3 T at Parker’s? A. — I think so. 

Q. — Had 3 r ou ever any conversation with Judge Day at Parker’s 
after that, and before he wrote you this letter? and had you an3^ idea 
as to how much moi^ 3*011 were to send him providing he would fix 
up the barn matter with N3*e? A .—I had an idea in my mind of 
what would satisfy him. 

Q • — From any thing he said to you? A .—I don’t know that 
he fixed the sum. 

Q . — Or that anybody said to you ? A. — It was simply from what 
he wrote that I fixed it. 

Q. — He didn’t write any sum? A. —I am not positive that he 
did. 

Q. — Then, how did 3^011 fix it, if he didn’t mention anv amount? 
A. — It was nry opinion, that’s all. 

Q. (By Mr. Cook of the Committee.)—Was this account that 
you rendered, 3*0111’ account as joint executor? or did you both render 
the same account? A .—No, sir: I think we rendered separate 
accounts. 

Q . (By the Chairman.) — Was this interview at Parker’s in the 


1882.] 


SENATE —No. 150. 


189 


beginning of j’our administration ? A. — It was early within the 
first 3'ear. 

Q . — And you sa} T the question of the barn hadn’t then arisen? 
A. —I think not. . 

Q. — Now, tell the Committee as nearly as you can what j’ou con¬ 
sulted him about at that interview, and what was done and said 
about payment. A .— Well, I haven’t refreshed nry memor}' at all 
in regard to the business until our consultation further than — 

The Chairman. As nearly as you can recollect. A. — I wanted 
to know whether it was m) T personal duty to attend to the care of 
the real estate, the homestead particularly, and to see that the pro¬ 
ceeds went to the societ} r , etc., —whether it was our duty, as exec¬ 
utors, to let it, or what course we should take ; and there was some 
other question in regard to the personal property. There was a 
claim of one of the relatives ; and, as to our duties in regard to that, 
I consulted him. 

Q. — You consulted him at the Parker House in regard to all those 
things? A. — I did, at different times — 

Q .— Or didn’t you? A. —No, sir: I don’t think our interview 
at Parker’s was of more than five minutes. It was brief. 

Q. — I want to get at what you consulted him about at the Parker 
House. A. — I don’t think I can state any definite point at that 
time. 

Q. — General^, what was it about? A. — My duty as executor, 
the course I should take as executor. 

Q. (By Mr. Cook.) — Were you and Mr. N}’e acting in harmony 
at that time? A. — I think so. 

Q. (By Mr. Kingsbury of the Committee.) — What was this five 
dollars for — the advice at Parker’s ? A. — No, sir : for having called 
on him and asked his advice as counsel, asking him to direct me at 
different times. That ma}^ seem a small sum. 

Q. (By the Chairman.) — Different times previous to that? A. — 
Yes, sir: not for that special service. 

Q. — What did you consult him on previously? A. —Just what I 
mention. 

Q, — Then, } t ou want us to understand that this five dollars was 
paid for advice that he gave you in regard to your duties as executor? 
A. — That is as I understand. 

Q, _Well, now, can’t you at times previous to the Parker House 

consultation and for the Parker House consultation, — is that it? 
A. — Can’t I swear? 

Q. —That this five dollars was paid for advice that he gave to you 
at times previous to the Parker House consultation — times prior 
to that? A. — No, sir: my idea is not quite so definite as that. I 
will tell you what was in my mind. I supposed — 


190 


HEARING —JOSEPH M. DAY. 


[March, 


Mr. Burdett. I object. Prett}^ haz}’ now, his idea is. 

Mr. Thompson. We want what he said to the judge. We are not 
responsible for what was in his mind. 

The Chairman. Proceed, Mr. Witness. 

Witness. I supposed the judge got paid from the estate for what 
advice he gave me. That was supposition ; but he seemed so 
indifferent to my questions, I thought perhaps I should pay him : and 
I asked him that question. 

Q. — What question? A. — Whether something wasn’t due him 
for the trouble he was taking; and I asked, would I give him five 
dollars. I think he answered, do as }*ou please ; and, said I, here’s 
five dollars: perhaps that is small—I said something of the kind. 
I gave him the five dollars, and asked him if he didn’t want any 
more. He didn’t ask for any more, and I didn’t pay him any more ; 
but subsequently I found it was not my dut} T to pay him, and I didn’t 
offer him any more: and, when he proposed to me in a letter, I 
thought it was an important letter, and for that reason I put it in the 
safe, and kept it for years, until after the estate was settled ; and then 
I put no value upon it, and it has been lost. That is the simple fact. 
I don’t suppose it is of much significance. 

Q. (By the Chairman.) —Do you know when } t ou filed your 
account? A. —No, sir. 

Q. —How long ago do you think it was? A. — In 1872, I think, 
final account. It may have been ’73. 

Q. (By Mr. Thayer.)— Are you positive you hadn’t seen him 
before seeing him at Parker’s? A. — I am. 

Q. — Didn’t you state that jt>u had been to his office on Court 
Street many times? A. — Yes, sir, I did. 

Q. — Then, where did } t ou see him before that time? A. — I had 
seen him at his office. I went there repeatedly without seeing him ; 
so I wrote to him, and then saw him several times afterwards in 
Pemberton Square and at the Parker House. 

Q. — Why didn’t you ask him then some of these questions? 
A .—Perhaps I did: I may have asked him with regard to some 
matters. 

Q. (By Mr. Bruce.) — Did 3 T ou ever consult Judge Da3 r as attor¬ 
ney on any subject except as to your duties as executor? A — I 
never did ; not that I remember of. 

Mr. Burdett. That is, as he understood the matter. 

Q. (By Mr. Thompson.) —Now, with regard to your duties as 
executor, I suppose that you asked him with reference to what you 
understood to be your duties as executor, didn’t you? A. — I asked 
him, that I might understand my duties. 

Q —With reference to matters that you understood belonged to 
you as executor? A. — Certainty. 


1882.] 


SENATE —No. 150. 


191 


Q- —Didn’t you sa\ T to me that 3*011 asked him at the Parker House 
with reference to the barn? A. — No : I don’t think 1 did. I didn’t 
intend to say so. 

Q • — And didn’t I press you upon that question, and ask you 
what other matter you asked him about then, and you stated you 
asked him about matters with regard to the estate, but 3*011 didn't 
recall what matters? Didn’t } r ou say so? A. — That’s what I 
meant to say. 

Q •—And didn’t you tell me that the only matter you consulted 
about was the barn, although you thought you did consult him about 
other matters? A. —I don’t remember that I said so. 

Q. — Haven’t you an} T recollection—didn’t you say the question 
was in relation to a portion of the real estate? and wasn’t that 
the first question that I put to 3011 in talking of Parker’s? A. — I 
may have been a little confused, you are so severe in 3*our questions. 

Q. — Did the first question I asked confuse you? A. — I think 
3’our manner, rather than 3 T our questions, did. 

Q. — Can’t 3*011 tell the truth, even if a man isn’t of pleasant 
manners? Does that make you falsify? A. — No, sir: I am only 
explaining — 

Q. —Well, then — A. — I think you would understand me better 
if 3’ou would let me answer the questions — 

Q. — Then 3011 don’t mean to say that at the Parker House 3*011 
asked with regard to the real estate, but you mean to sa3* that you 
didn’t ask? A. —No. 

Q. — So that you ma3 r now have asked at Parker’s with regard to 
the real estate? A. — I am not positive. 

Q. —You may have asked about the barn at Parker’s? A. — My 
impression is that I didn’t. 

Q. —I sa3 r you may have asked? A. —I would not want to swear 
I didn’t. 

Q. —When was the first time after 3*011 were appointed executor 
that 3’ou saw Judge Day, and where? A. — I think first in his office 
at Pemberton Square. 

Q . — What took place between 3*011 ? A. — I don’t remember dis¬ 
tinctly at first. 

Q. —When did you see him the second time? I understand that 
3^ou saw him again. A. — I say I don’t remember any one interview 
separate from any other interview except that at Parker’s. We talked 
on no particular matter at any of the interviews. What I said about 
the barn was, that that was the principal point of difference between 
the executors, and the special point upon which I was obliged to con¬ 
sult Judge Day. 

Q. — Now, do you remember any thing with regard to the length 


192 


HEARING —JOSEPH M. DAY. [March, 


of time after you were appointed executor before you saw him? 
A. — I don’t: no, sir. 

Q. — Do you remember any thing with regard to the length of time 
it was before the question as to the barn arose? A. — From the time 
I was appointed executor? 

Q .—Yes. A .—It was quite a long time. It cannot have been 
any more than one year, I suppose. I think we knew something 
about it, —perhaps one year. He didn’t go to extremes in regard to 
it until much later. 

Q. — Didn’t you say that you took out of your pocket five dollars, 
and gave it to Judge Day, supposing that it might have — that you 
ought to give him something, without his saying an}’ thing with regard 
to the matter of pay ? Did you state that ? A. — I think I introduced 
the matter of pay. 

Q. —I am only asking you : I do not repeat your words. Didn’t 
you say substantially that,—that he might not be communicative 
because he thought he ought to have some pay? A. —That was in 
my mind. I suggested to him that I ought to pay him, and asked 
how much. He didn’t name any sum. I handed him five dollars. 

Q. — Did you take any receipt? A. —No, sir. 

Q. — Did you goto anyone else for advice except the judge at 
Wareham? A. —I don’t remember that I did. 

Q .—Didn’t you consult any other counsel? A. — Not to my 
recollection. 

Q. — Have you any recollection as to whether you did, or not? 
A. —No further than I have stated. 

Q. —Did you ever consult Judge Day until after the other execu¬ 
tor had called on you in some way, or in some way demanded the 
return to the estate of about two hundred dollars that was in Miss 
Kelley’s house? Whether that has been claimed by your wife as 
given to her? Did you ever consult him until that? A. —I think 
so ; I don’t think I ever consulted him in regard to that. 

Q. — No : but I am asking you to fix the time. A. — I don’t think 
Mr. Nye ever consulted him. 

Q. — Are you sure about that? A. —About what, sir? 

Q. — That you consulted him before this question arose as to the 
two hundred dollars? A. —I consulted him without regard to that. 

Q .—lam asking about the time you first consulted Judge Day? 
A. —I say I don’t know when Judge Day— You ask me if I 
consulted him before Mr. Nye? 

Q . — No, sir: nothing about that, but before Nye demanded of 
you two hundred dollars that was in the house? A. —Oh, yes! I 
don’t know that he ever demanded it. He never did to my recollec¬ 
tion. 


1882.] 


SENATE —No. 150. 


193 


Q • — Don’t you remember there was a controversy about that? 
A. — No. sir: I never heard of any thing of the kind. There was 
two hundred dollars in the house. 

Q • —You never heard what became of it? 

The Chairman. I really do not see how this can be material in 
any conceivable aspect of the case. . 

Mr. Thompson. I supposed we might fix his recollection in 
regard to the matter. 

The Chairman. We have allowed very great latitude in the 
cross-examination, and we have done it because it has been cross- 
examination. 

Mr. Thompson. It was an event of ten years ago ; and it is a 
matter of considerable importance to see what the witness’s recol¬ 
lection is in regard to the transaction. 

The Chairman. Of course we understand that; and it is one 
reason why the Committee have allowed you to cover the extent that 
3 t ou have, on matters which would not otherwise be material. 

Mr. Harriman notified the Committee of the presence of Mr. Bur¬ 
gess of Middleborough, and that the petitioners had concluded not to 
rely on the charge of intoxication Oct. 5 . 

[The charge of intoxication at Middleborough, Oct. 5 , was stricken 
from the specification.] 

Mr. Thompson. I should like to have it appear in some way that 
Mr. Burgess is here, Mr. Chairman. If that fact appears, it is 
enough. 


SAMUEL H. GOULD. Sworn. 

Direct Examination by Mr. Harriman. 

Q. — Your name is Samuel II. Gould? A. —Yes, sir. 

Q. —You are a physician at Brewster? A. —Yes, sir. 

Q. —How long have you been in practice? A. —Fort} r years or 
more ; fort} T -two years. 

Q. — Whether you were appointed hospital physician under Judge 
Day at the time he was collector of customs for the port of Barn¬ 
stable? A. —Yes, sir. 

Q. —That was in 1861 ? A. — 1861 , I think. 

Q. — Whether or not, before or subsequent to } T our appointment, 
you paid Judge Day some money? 

Mr. Thompson. Well, I object to that. 

Mr. Wadleigh. I believe the ninth charge is allowed to stand, 
Mr. Chairman. 

Mr. Thompson. I don’t think he can testify about that yet. He 
had not any thing to do with the custom-house. 


194 HEARING —JOSEPH M. DAY. [March, 

Mr. Hakriman. He was appointed hospital physician under Judge 
Day. 

Mr. Thompson. He wasn’t a custom-house officer in any sense of 
the word. 

The Chairman. It doesn’t necessarily mean that — that the offi¬ 
cers were appointed in the custom-house. It says, — 

“That in 1861, while judge of probate, said Day was appointed collector of 
customs for the district of Barnstable, with the understanding that he would 
resign the office of judge, but that he did not resign; that, while holding both 
said offices, he corruptly demanded and received from officers, recommended 
for appointment by him as such collector ” — 

I think you should show first that he received this appointment. 

Mr. Harriman. I have asked that question, and he says he was 
appointed — 

The Chairman. Through Judge Day’s recommendation? 

Mr. Harriman. By him. 

Mr. Thompson. I told counsel, that if this man has been appointed 
to any office by Judge Da}’, and there is any proof, that is, w T ritten 
proof, that it should be produced. 

Q. (By the Chairman.) —Did you perform the duties of hospital 
physician under Judge Day? A. —Really, I don’t know. I re¬ 
ceived an appointment, or what was tantamount to that. I received 
a bond which I executed. 

Q. — As hospital physician? A. — As physician and surgeon to a 
certain district. 

Q. (By Mr. Harriman.) —What was that district? What towns 
did it include? A. — Some three or four towns. 

Q. — Did you attend to the duties after your appointment? A. — 
I did. I don’t know who I was appointed by: I supposed it was 
Judge Day who had appointed me. 

Q. — Whether or not you paid Judge Day — 

Mr. Thompson. I object till some proof is offered. 

Mr. Wadleigh. That is a matter for you to develop on cross- 
examination. 

Witness. I presume I was appointed by him. I don’t know. 

Mr. Wadleigh. I trust he will let the cross-examination come in 
after the examination, if Mr. Thompson can possibly control himself. 

Q. (By Mr. Harriman.) —Whether or not, after you were ap¬ 
pointed, you paid Judge Day any money? If so, how much? A. — 
I paid him money after that several times for different purposes. 

Q. —Whether you paid him any particular sum that didn’t come 
from the. fees that you received — or, what were the sources from 
which your money came, that you paid him? A. — It is so long ago, 
I cannot tell. I generally have money in my pocket, and it would be 
hard to tell where it came from. 


1882.] 


SENATE — No. 150, 


195 


Q- — Was it some that you had collected from 3*011 r patients ? A. 
— No, sir. 

Q' — Was that mone}* that belonged to Judge Da}*? A. — Never. 

Q- — Whether or not you paid him an\ T sum of mone}*? A. — I 
said several times I paid him money. 

Q. (B} t the Chairman.) —What for? A. —Different purposes. 

Q . (By Mr. Harriman.) — How much did you pay? 

The Chairman. Did 3011 ever pay him for 3*0111* appointment as 
hospital physician? A. — No, sir ! no, sir ! Ma3* I explain? I was 
told before the appointment came — 

Mr. Crowley (of the Committee). — I object to his telling this. 

Witness. 1 was 011I3* going to explain all I know about the ap¬ 
pointment. 

The Chairman. Mr. Witness, any thing that Judge Da3* told 
you— A. — I never passed a word with Judge Da3* in regard to it, 
until I heard that he was going to exact mone3 T f° r the expenses. 

Q. —What did 3*011 sa3* then? Tell 11s what you were told. A. — 
I told him that I understood that the perquisites of that office had 
got to be paid here. 

Q. —Paid where? A. — To him, or the custom-house, to his 
friends. I told him also, I heard a sum had to be paid for the 
appointment: I asked him if it was so. Said I, if that is so, I want 
3*011 to tell me now; and then 3*011 can take your office, and go to the 
Devil with it before 3*011 have me. Those were the words I used. 

Q. — What did he say to that? A. — Don’t be troubled before 
3’our time : that’s the answer he made me. Perhaps lie don’t re¬ 
member; but I remember it: and after I had m3* bond in m3’hand 
to have it executed, that’s all the appointment 1 received. 

Q. — Whether or not you received some mone3*? A .—Not at 
that time, but afterwards I paid him mone3 7 . Never so far as a 
word had been passed between us. 

Q. — What was it paid for? A. — Paid it for what I considered 
honorable, for expenses, my part. 

Q. — What was the sum, as near as you can tell? A. —Jt might 
have been fifty dollars ; perhaps more, perhaps less. That was one 
payment. Afterwards I made another payment. I made his friend’s 
payments ; but I believe he wasn’t collector at the time, and I don’t 
know as he was at the time of the first payment. It was long after¬ 
wards— one payment I made, — at the time he was going to the 
war. 

Q .—What was the second payment? A. — It might have been 
ten dollars or fifteen dollars, or more. I gave it, and considered it as 
a present. 

Q . (By Mr. Harriman.)—W hat for? A. —He was going to the 


196 HEARING —JOSEPH M. DAY. [March, 

war ; and as others were making a fit about it, giving him a revolver 
or something of the sort, I went in. 

Q. —What was the first fifty dollars paid him for? A. —Because 
we had to choose to give it to him, because he went to the expense. 
I have done it to collectors since. 

Q. (By Mr. Crowley.) — It w r as in the party? A. —Yes. Be¬ 
cause he was taking trouble in the part}’. Mr. Swift, while I had it, 
was at Washington about something about the party, or business of 
the hospital physician ; and I proposed giving him something, a New- 
Year’s present, and did it. 

Q .—Whether or not you haven’t said that you paid as much as 
a hundred dollars to Judge Day? A. — Said so? I may: I don’t 
know. I think I may have said so, because I say a great many things. 

Q .—You were called up here as a witness by Judge Da}', in his 
favor, last year? A. —Yes ; and I told what I knew. 

Q. (By Mr. Thayer.) —You gave this money to grease the party- 
wheels? A. —I gave it as my own. He done me a friendly favor. 

Q. (By Mr. Wadleigii.) — It was paid because he had done you a 
friendly favor? A .—Yes, sir. 

Q. —What was the favor that he had done you? getting you ap¬ 
pointed? What was it, if any thing? A. — I presume it was paying 
my part of the expenses occurring in the office. 

Q . —What was the friendly favor that he had done? A. —As I 
say, I had an appointment, and a profitable one, and received money 
from it; and he was the one that I supposed appointed me. 

Q. —Then, you paid the money because you supposed that he had 
got you appointed hospital physician, did you? A. —You might call 
it that. 

Q. (By the Chairman.) —What do you call it? A. — I call it 
paying part of the expenses incident to the office. 

Q. (By Mr. Thayer.) —You have paid it to others holding that 
office, since, in the same way? A. — I have for the same purpose. 

Mr. Wadleigh. That’s immaterial. 

Mr. Thayer. A sort of corruption fund, as I understand it? 

Mr. Wadleigh. Yes. 

Q. (By Mr. Wadleigh.)— What was the amount of the second 
payment? A. — I really don’t remember — ten, fifteen, or twenty 
dollars. 

—Didn’t you pay in all one hundred dollars? A. —Yes, sir, 
and more too, in different payments. 

Q.—Now, did you pay him fifty dollars more, the same amount, 
afid for the same reason that you paid him the first fifty dollars that 
you spoke of? A. — I don’t know as I did. It was represented to 
me that he was going to the war, and that there was a present to be 


1882.] 


SENATE —No. 150. 


197 


made to him, when I contributed my part for the favors that he had 
heretofore done. 

Q’ What were those favors? A. —Giving me that appointment. 

Q- — And then you made the second paj’ment to him for the same 
reason that 3*011 made the first? A. — I did, certainty. 

Q '—Out of gratitude? A. —Yes, sir, out of gratitude; and 
that’s the way in both of them. 

Q- — Now, you have stated that 3*011 paid from one hundred dollars 
on ? A. — As much as that, or more. 

Q '•— lo whom did 3*011 pa3* that money? A. — Part of it I sent 
by letter. 

4/ 

Q. — To whom ? Judge Day ? A. — No, sir. 

Q • — To whom ? A. — I realty don’t remember. 

Q • — Wasn’t it Walter Chipman ? A. —I think very likely it was. 

Q • — Was he deputy collector under Judge Da3* at Barnstable? 
A. — He has always been, under every man that I have known. 

Q. — Was he under Judge Day ? A. — He was. 

Q• —How happened 3*011 to send him that mone3* b3* letter? A. — 
Because I received a letter stating that they were getting up some¬ 
thing,— some money, purse, or whatever 3011 please to call it,— 
making a fit about it, getting a revolver and certain other things for 
him before he went to war. 

Mr. Thompson. I don’t see — 

Mr. Harphman. Let him answer. 

Witness. I have stated, because I felt friendly towards Judge 
Day, and I wanted to do m3’ part always. 

Q. (B3’ Mr. Wadleigh.) —How long was it after you got this 
appointment belore you received this letter? and who was it you re¬ 
ceived the letter from? A. — I should think Walter Chipman. 

Q. —How long after your appointment was it before you received 
the letter? A .—The time he went to the war: I think in July, as 
near as I can sa3*. 

Q. — Now, that was the second payment? A. — Yes, sir. 

Q. —How long was that after the first? A. —Perhaps six months. 

Q .—To whom did you pa3 r the first mone3*? A. —Realty, I 
don’t know: I have forgotten. It might have been Judge Day him¬ 
self; but that was some time after I had the appointment. 

Q .— Now, when 3*011 paid that money to Judge Da3*, did 3*011 un¬ 
derstand that the other officials w*hom he had appointed, or gat ap¬ 
pointed, were making payments to him? 

Mr. Thompson objected. 

Mr. Wadleigh. What he knows. 

Witness. I don’t know. There was no consulation with any- 
bod3*; never a word, further than that he told me that he might have 


198 HEARING —JOSEPH M. DAY. [March, 

received five thousand dollars for those appointments, but he hadn’t 
done it. 

Q. (By the Chairman.) —Did he say how much he received? 

Witness. He stated he hadn’t received a dollar. He might go 
to the Devil, rather than I should take his office. 

Q. (By Mr. Wadleigh.) —And after that, you did pa}'? A .— 
It might have been a hundred dollars: it wouldn’t have been more 
than a hundred and twenty-five dollars in both cases. 

Q. (By the Chairman.) —Can you tell what part of the year the 
first payment was made in? A. — As late as October. It was made 
in October. 

Q. — When was your appointment? A. — In the summer ; several 
months before that. The first payment was made in October, and 
the second one in July, about a year after the time I was appointed. 

Q. (By Mr. Wadleigh.) —You were appointed the 1 st of July? 
A. —I don’t remember that it was the 1 st; about that time. 

Q. —Then, about the 1 st of October, three months afterwards, 
you paid fifty dollars? A. —Yes : whatever I did pay. 

Q. —You said something about it having been on account of ex¬ 
penses,— whose account? A. — I considered it for the expenses he 
had been at connected with the office, and getting the appointment 
of collector. 

Q. —Then, this was paid by you to him on account of expenses 
that you supposed he had been to? A. —I distinctly said that I 
gave it as a gratuity to him. I want that distinctly stated, —that it 
was a gratuity on my part. 

Q. — Do you think you paid that to him personally? A. — Well, 
I don’t remember exactly. If I paid it to him, I paid it to some 
other person : he would give it to him. 

Q. — How long after you were appointed did you receive the first 
payment from the government? A .—I received payments every 
three months. 

Q. — Did you pay that out of the money that you received? A .— 
I think I may. 

Q. —Was that kept back for your— A. —No, sir : it was all put 
into my hand. 

Q . — And you say you think you paid it over? A. —I don’t say. 

Q. — I mean, that it was about that time ? A. — I have nothing to 
keep back, for the very reason that I told you in the first place, that 
there was no bargain about it. 

Q .—You have been very friendly with Judge Day? A .—Yes, 
sir ; all but once, when I got mad all the way through. [Laughter.] 

Q . —You got over that? A. — I got over that next day. 

Q • —And you have been very friendly ever since? A. — Nothing 
more than with any other man. 


1882.] 


SENATE —No. 150. 


199 


Q. (By 7 Mr. Thayer.) — You say you don’t know the amount y*ou 
paid Judge Day after y*ou paid him the first payment. Y r ou also 
stated that y*ou continued to pay 7 the collectors that held the office 
since Judge Day 7 . I want to know how it compares with the pay 7 - 
ments that you continued to make to the collectors since ? A. — It 
was more the first time. I say it wasn’t far from a hundred dollars, 
the first payment. 

Q • — And the pa3 T ments you made Judge Day after that? A. — I 
didn’t make it to him, but to his friends, to help out in a creditable 
manner to Cape Cod, when he was going to the war. 

Q. — And you think that the amount paid Judge Da3 7 was more 
than you have since paid? A .—I should say* it was about a hundred 
dollars to Judge Da3 T . I never kept it back. I have told everybody. 

Q. (By 7 Mr. Wadleigh.) —Now, doctor, I don’t want any impu¬ 
tation resting on the fair fame of gentlemen who didn’t receive any 
thing from y*ou. State what collectors 3 T ou did not pa3 r . A. — Sub¬ 
sequent^, for some reason or other, it was proposed to pay the 
expenses of Mr. Swift going to Washington. 

Q. — Have 3*011 paid the present collector one cent? A. — No, sir: 
I didn’t pa3 T the other ones except as I have said, as a New-Year’s 
present. 

Q. —Has the present collector received an3 r thing from you? 

Mr. Crowley. Mr. Swift? 

Witness. We made a present to him. It was Mr. Swift, Col¬ 
lector Swift. 

Q. (By 7 Mr. Crowley.) —Who is collector now? A. — Mr. 
Goss. 

Q. — He hasn’t got any presents, has he? A. —I am friendly to 
him, and I have taken his paper all the way* along ; and I think I made 
a present of sixty-five cents or a dollar for Judge Day’s trial last 
3 T ear, 'which he reported as a document. He reported quite a number 
of them, and he informed me that they* didn’t sell as much as he ex¬ 
pected. 

Q. (By Mr. Wadleigh.) —Y r ou didn’t pay him any thing? A. — 
I am not in the ring now. 

Q. (By Mr. Crowley.) —You don’t hold the office of physician 
now, and 3*011 differ from Judge Day? A. — Because I am a Republi¬ 
can and he is a Democrat. I don’t think an3* worse of him for that. 

Q. (By Mr. Crowley.) —Has that any 7 thing to do with this? 
A. — I don’t know as I came up altogether on account of that. I 
have nothing to conceal. 

Mr. Crowley. I would like to find out what the opinion is on the 
Cape, whether this is a movement designed for the public good, or for 
political purposes. 


200 


HEARING —JOSEPH M. DAY. [March, 


Witness. I have found human nature about the same on the other 
Cape where I used to live. I think they are very much alike. 

Q. (By Mr. Thompson.) —Did Judge Day ever demand a dollar 
of you in any way, manner, or form? A. — Never, never, never! 

Q. — And how long was it after Judge Da}’ received his appoint¬ 
ment before you received your appointment? A. — I don’t know, 
sir — when he was appointed — I presume very soon after. 

Q. — He was appointed in May. A. — I think in June: he can 
tell you about that. I received my appointment with the others. 

Q .—I suppose that the collector of the port is regarded as the 
head of the party? A. —He was generally considered so when I 
was in the ring. 

Q. —He was the head of the party? A. — Exactly. 

Q. — And, when you contributed money to him, it was for the 
part}’, to a considerable extent, for the good of the cause? A. —I 
have told you just what I did. Because it was a friendly favor to 
Judge Day. It was a favor I did for him. 

Q. (By Mr. Crowley.) —It was a present to Judge Day? A. — 
Oh, altogether! 

Q. — How long did you hold that position? A. — I believe I held 
it till it was abolished, some six or seven years, until I was thor¬ 
oughly tired of it. 

Q. — Were you called upon for political assessments? A. — I 
think very seldom or ever any. I don’t think I w r as called upon. 

Q. —You helped to pay for political purposes? A. —Perhaps I 
did: I paid my part for caucuses or any thing in that way. I don’t 
remember. 

Q. —You don’t pay money in caucuses? A. —I may have paid 
it to get people out. I always acted very much as other political 
men in the ring. 

Q. (By Mr. Thayer.) —You never held the office under the 
present collector? A. —Never. I never paid Mr. Swift anything 
except the time I told you of. I made one present, a New-Year’s 
present. I never paid any thing else. 

Q. (By the Chairman.) —That w r as in company with other em¬ 
ployees? A. — I might have presented him with a cane, but we 
didn’t: we gave him perhaps twenty-five or a hundred dollars as the 
case might be. I suggested that the best present we could make a 
man was money. 

Q. (By Mr. Burdett.) — How much did the New-Year’s present 
amount to in all? A. —As near as I can recollect, fifty to a hundred 
dollars. 

Q. —The whole of it? A. —'Fifty to a hundred dollars. 

Q. (By Mr. Wadleigh.) —How did you get the idea that this 


1882.] 


SENATE —No. 150. 


201 


fifty dollars which you first gave would be acceptable to Judge Day? 
From what source did you get the idea? 

The Chairman. He says fifty or a hundred dollars. 

Witness. I didn’t get it from any individual. I got it from 
knowledge I have of mankind in general. I thought it would be 
acceptable, that’s just it; and I have always spoken of it freely, as 
you can see I am inclined to talk. 

Q. (By Mr. Wadleigh.) — Now, can’t you tell us to whom you 
paid it? A. — I think it would be likely to be the collector, the one 
in the house. I should think one payment was to him, and one I 
sent. 

Q. —I mean the first payment, fifty or a hundred dollars? A. — 
I think likely it was paid directly to Judge Day. 

Q. —Do you remember what he said at the time? A. —He was a 
gentleman, and always expressed himself in a gentlemanly manner. 
Really, I don’t remember a word ; but I know it was high-spirited, 
very appropriate. I don’t think he ever considered he was bribing 
me, or I him. 

Q. — Did he express any surprise ? 

Mr. Burdett. This witness doesn’t know that he paid an}’ money 
to Judge Day. 

Q. (By Mr. Wadleigh.) —Do you think you paid it to Judge 
Day? A. — I think very likely I did. 

Q. — Do you remember whether Judge Day expressed any surprise 
at that time, that you gave him any such present? or did he take it 
as a matter of course? A. —I don’t think he expressed any sur¬ 
prise, one way or another; no more than if I gave him fifty dollars 
or a hundred dollars, and told him it was for a favor he had done. 
I look upon the matter as a favor, because we had quite a number of 
physicians looking for the same place, all about there ; and I thought 
it was a favor. 

Q .—Mr. Bursley came to you, and asked you if you would like 
the position? A. —David Bursley. He did. He was the prime 
mover; and I asked him if Judge Day wanted any thing — 

Mr. Thompson objected. 

Q. (By Mr. Wadleigh.) —You wrote a letter to Bursley? A. — 
Yes. Then I thought it was rather delicate to put your name to 
writing, and I tore it up; and then I went to Judge Day himself: 
and probably he remembers it. 

Q. (By Mr. Thompson.) —Don’t you know that Mr. Swift, the 
collector, was presented with one thousand dollars from his employees? 

A. _I know that, as far as I was not concerned, to my knowledge, 

I could not have heard or known of it. I only gave my mite. Two 
others of us made up a New-Year’s present. 



202 


HEARING —JOSEPH M. DAY. [March, 


Q .—Did you make any concealment of the fact that you made 
Judge Day a present? A .— Never. It has been open ; and I have 
spoken openly always, — always have, since this trouble came on. 


GEORGE W. DOANE. Sworn. 

Direct Examination by Mr. Harriman. 

Q. — Your name is George W. Doane? A. —George Washington 
Doane. 

Q. —You live where? A. — Hyannis. 

Q. — And you are a physician and surgeon? A. —Yes, sir. 

Q. —How many years have you been so? A. —Thirty-seven. 

Q .—Whether or not you received an appointment under Judge 
Day while he was collector? A. — I supposed my appointment was 
from the Secretary of the Treasur} r , through his recommendation. 

Q .—That was in 1861 ? A. — 1861 . I suppose it was in that * 
wa} 7 . I had to give a bond to that effect. 

Q .—What was your district? A. —Well, my district included 
the towns of Barnstable (which run differently from what it does 
now) down on the Cape to the lower part of Dennis, in fact, in 
Harwich and Cotuit, — I had Dennis, Harwich, and Barnstable. 

Q. —Marshpee? A. —Yes, sir. 

Q. —Whether you performed its duties? A. — I did. 

Q. — How long did you remain hospital physician? A. — Well, 
somewhere about five or six years. 

Q. —Did you remain till the office was abolished? A. — I did, 
sir: the same as Dr. Gould. 

Q. —Whether, or not, at your appointment, you paid Judge Day 
any money? A. — I never paid Judge Day any mone} r directly. 

Q. —Indirectly? A. —I couldn’t say, any further than it was 
generally understood. 

Mr. Thompson. I certainly object to that. 

Q. (By Mr. Harriman.)—W hat you did with regard to paying 
money? A. — I never had a word with Judge Day in regard to it. 

Q. — What did }^ou do with the mone} T ? 

Mr. Thompson. I object to that. 

Mr. Crowley. I object. 

Q. (By Mr. Harriman.) —Did you ever pay any money to Judge 
Day after } t ou were appointed to this office ? 

The Chairman. One moment, please. 

Q •—Whether or not, after your appointment as hospital physi¬ 
cian under Judge Day in office, you paid any money to any person 
in relation to that appointment, aforesaid— appointment, — directly 
or indirectly ? A. — I did. 


1882.] 


SENATE —No. 150. 


203 


Q • —How much? A. —Well, it has been twenty-one years — 

Mr. Thompson. I object to go on in this way. If he paid money 
to an} T bod3 r e ^ se ? it is wholly immaterial. 

The Chairman. If he can prove it went into Judge Day’s hands, 
it is evidence ; if not, it is not. 

Witness. It is twent3’-one 3 T ears since that time ; and it is impossi¬ 
ble for me to tell exactly the amount I paid, or that I paid. I didn’t 
pa3^ Judge Da3\ 

Q. — State as nearly as 3*011 can. A. —I should not be willing to 
state on oath how much I paid. 

Q. — State to the best of 3 T our judgment. A. —It is a ver3 T diffi¬ 
cult matter for me to sa3^. It has been twent3^one years. I — per¬ 
haps I have mentioned it, how large. At times I have paid some 
one hundred dollars. I presume I have mentioned that, that I have 
paid for purposes of that kind. 

Q. — What kind ? 

Mr. Thompson. It is immaterial. 

The Chairman. Let us see. 

Mr. Burdett. He has not — 

Mr. Thompson. I object to his saying “ I may have stated it.” 
That is wholly immaterial. 

Q. (B3" Mr. Harriman.) —Now, doctor, state to whom 3 t ou paid 
this money. A. —I certainly couldn’t tell 3*ou in any way to whom 
I paid it. 

Q. — Give us 3*our best judgment. A. — I could not tell to whom 
that money was paid in any way. My memory doesn’t serve me 
sufficiently to sa3*. 

Q. — Do 3*011 know the way 3*ou paid it? A. —No, not very posi¬ 
tively. 

Q .— In what way? A. — I never was approached personally by 
Mr. Da3^ for that mone3*. 

Q. — Why did you pa3* it? A. — It was general^ understood that 
we, the hospital physicians, etc., should pay a certain amount of 
mone3 T among us. 

Q. (By the Chairman.)—T o whom? A. —That it should be 
paid to carry on the campaign, and so on. 

Mr. Crowley. That’s what’s the matter. That’s what we have 
been trying to get at all da3*. 

Mr. Harriman. It is very evident, Mr. Chairman, that these gen¬ 
tlemen are unwilling witnesses. 

Mr. Crowley. It doesn’t seem so to me. 

Mr. Harriman. This witness has with great reluctance testified 
so far. I ask him what he paid the money for ; and he says campaign 
purposes, or the purpose that Dr. Gould’s money went for as pre¬ 
sented to Judge Day. 


204 


HEARING —JOSEPH M. DAY. [March, 


Witness. I considered, that, as there were a number of applicants 
for the office, Judge Day was doing me a favor in getting me the 
appointment. 

Q. (Ety the Chairman.) —Was that what you paid it for, Mr. 
Witness? A. —I don’t know that I paid it altogether for that. 

Q. — What, then ? A. — I considered that part of the business 
in getting the office. I don’t know how much went to Judge Da}^, 
and how much went to carry on the campaign. I understood the 
rest paid, and I paid my part. I could not tell the amount or time 
when it was paid, as it is twenty-one years since ; and it is impossi¬ 
ble for me to do it. 

Q. (By Mr. Harriman.) —Do you know where, at Barnstable or 
Hyannis? A. — I never paid it directly to Judge Day. I never 
exchanged a word with Judge Da} r in relation to it. 

Q. — Who was deputy'collector at Hyannis then? A. — I don’t 
know : I had nothing to do with him. 

Q. —Sylvester Baxter, wasn’t it? How long after j'our appoint¬ 
ment was it } T ou paid this money? To the best of your knowledge? 
A. — I should say perhaps some three months or more. 

Q. — Whether about October? A. —About October, I should 
say, as near as I can judge. I am not responsible for my memory 
of twenty-one }^ears back. 

Q .—Whether this money was paid directly, or was taken out of 
your salary? A. — I couldn’t swear. I think the salary was paid 
over to me, and it was a voluntary matter on my part. 

Q. —Do you know Walter Chipman of Barnstable? A. — I do. 

Q. —Have you any recollection whether it was paid to him, or 
whether you sent it by mail or check? A. — I think I did not. I 
am very sure I did not. I think all I did was in the custom-house 
at Barnstable. I am not willing to swear to it. 

Q. —You think that was the place where the money was paid? 
A. — I think so. 

Q. —And, to the best of } r our judgment, the amount was a hun¬ 
dred dollars ? A. — I say, to the best of my judgment, the whole 
that I paid, the whole that passed into their hands. 

Q,. — How much did you pay, the first payment, in October? A. 
— I might have paid fifty dollars, or something of that kind. I am 
not positive. I would not take my oath to itr .it has been too long 
back. 

Q. —The amount, you thought, was a hundred dollars? A .— 
During the whole of the time I held the office, I may have paid 
more. Some circumstances certainly are not plain enough in my 
memory, as spoken of here to-day, to say whether I took part in 
them or not. 


1882.] 


SENATE —No. 150. 


205 


Q • —How much more than a hundred dollars did you pa} r ? A. —- 
I think a hundred dollars would cover every thing I paid. 

Q> —You think the first payment was in the custom-house at 
Barnstable? A. — I think so, although I should not be willing to 
take my oath to it. 


Cross-Examination . 

Q. (By Mr. Thompson.) — You don’t mean to say you ever paid 
any money as a bribe to obtain that office? A. — No, sir: I never 
did, and was never approached. 

Q . — Or under any obligation to pay money? A. — No special 
obligation. I rebelled against it, I presume. 

Q. — What you paid was as a general political contribution, some 
of it you think went to Judge Day, and some for political expenses, 
but in what proportions you have no idea? A. —Yes, sir. 

Q. (By Mr. Bruce.) — Had you received your appointment before 
it had been communicated to you? or were you communicated with 
with a view to paying Judge Day any thing, providing the position 
was given to you ? A. — I had no knowledge of any such under¬ 
standing. I was never approached by Judge Day on the subject. 

Q. — I ask whether it was communicated to you by anybody before 
you received the appointment, that, in case it was given to you, that 
you should pay Judge Day any thing? A. — No, sir: I have no 
recollection of any thing of that kind. 

Q. —Now, when you paid that fifty dollars in October, did you 
mean to have it understood that any of that was to go for campaign 
purposes? A. —In the first place, I haven’t stated on oath that it 
w r as fifty dollars — 

Q. —Whatever the sum was? A. — I couldn’t say. 

Q. — Do you mean that any part of that money was contributed by 
you at the time you passed it over, to whatever person you gave it, 
for campaign purposes? A. — I had an understanding that it was 
for campaign purposes. 

Q. — (By Mr. Hill.) — What campaign purposes? and what cam¬ 
paign? A. —There had been expenses incurred; and, as in some 
cases, the accounts of the expenses didn’t come in till afterwards. I 
didn’t look into that matter particularly. I don’t know what ex¬ 
penses there were, or that others had gone to. I know there is a 
great deal of expense every time we change an administration. 

Q. (By the Chairman.) —How long did you hold the office? A. 

_Five to seven years. It was closed the last of Mr. Lincoln’s 

administration. 

Q. — How long did Judge Day act as collector? A. —A few 
months. 


206 


HEARING —JOSEPH M. DAY. [March, 


Mr. Thompson. About six months. 

Q. (B} t Mr. Crowley.) —You paid monej" after Judge Day went 
out of office? A. — I am not so plain in my mind as some others. 
I should not be willing to take my oath that I paid a dollar after 
that. 

Q. —You paid this hundred dollars while he was in office? A. — 
I couldn’t say: my memory wouldn’t serve me as to the exact time 
the payments were made. 

Q. —You say you paid a hundred dollars? A. —I think so. 

Q — Did 3’ou p’ay that in the course of six months? A. — There 
was no agreement about it. 

Q. — Did 3’ou pa3^ the hundred dollars in the course of six months? 
A. — I should not be willing to tell. 

Q. (By the Chairman.)— What do you think? A. — I should 
state I did pay it within six months : I couldn’t take my oath. 

Q. (By Mr. Crowley.) — Never paid any since, while 3x111 held 
office? A. —So far as others are concerned, I have no knowledge 
nyself: I should not be willing to state ny’self, since. I have no 
knowledge whatever of giving a cent to Mr. Da3 T , at the time that he 
went to the war, as an outfit. If I did, I don’t remember it. 

Q. —Don’t you ? 

Q. (B3 7 Mr. Kingsbury.)— You sa3 T 3 t ou paid fifty dollars? A. 
— I judge so. 

Q .—That was about Oct. 6? A. —About the close of the first 
quarter. 

Q. — Whether or not that wasn’t about the time that 3 r ou received 
your salary for 3 r our services ? A. — I presume it was about the time. 

Q. — Whether it wasn’t just the time? A. — I couldn’t say. As 
I said before, I shouldn’t be willing to state positive^ any thing of 
that kind. 

Q. (By Mr. Thompson.)— When did you receive your appoint¬ 
ment? A. —Immediately after Mr. Day, — very soon after he came 
into possession of the office. 

Q. —Don’t you know that the campaign expenses of 1860 w r ere 
pretty heavy, — that it was a very vigorous campaign? A .—I sup¬ 
pose the3 T were. 


VALENTINE DOANE, Jun. Sworn. 

Direct Examination by Mr. IIarriman. 

Q. —Your name is Valentine Doane, jun. ? A. —Yes, sir. 

Q. — Where do you live now ? A. — Portsmouth, N.H. 

Q. — What is your business? A. —I am carrying on a general 
fish business. 

Q. —Where is your home? A. — Harwich, Mass. 


1882.] 


SENATE —No. 150. 


207 


Q •—Whether or not, in 18 G 1 , while living in Harwich, you were 
appointed to any office? and, if so, what? A. — I had an appoint¬ 
ment styled “ aid to the revenue.” I never knew what that meant. 

Q • — Generally called inspector, isn’t it? What were the duties? 
A. — We were obliged to sign a receipt once a quarter. 

Q . (By the Chairman.) — Was your office connected with the cus¬ 
tom-house at Barnstable? A .—Yes, sir. 

Q . — Whether or not, after your appointment, you had an}' conver¬ 
sation with Judge Day with reference to making any payments? A. 
— I would not say that I had any conversation with Judge Day with 
reference to making the payment. 

Q. — Did you have any conversation with him? A. — I had con¬ 
versation with Judge Day several times. 

Q. — About your appointment. A. — Well, I don’t think I ever 
had any conversation with Judge Day about my appointment. It 
was done through another party. 

Q. — Who was the other party? A. —David Bursley. 

Q. — Whether or not you had some conversation with him rela¬ 
tive to an assessment or payment? A. — I think at one time at the 
court-house there was some conversation with Judge Day ; and, among 
other things, the matter of the large expense was suggested, in ob¬ 
taining the office, the collectorship. This was in a general way. 
There are no particular facts that I can call to mind in reference to 
it. There was quite an expense incurred. 

Q. — Whether or not you paid any money? A .—I don’t seem 
to remember : I never paid Judge Day a dollar in my life. 

Q. — Whether or not you paid any money to any one? A. — I 
cannot say I ever paid any money to any person. 

Q. — Have you any recollection about that? A. — If I remember 
right, there was from the first quarter’s salary a deduction made for 
some purpose : I don’t know what. 

Q. — How much ? A. — I couldn’t say, sir. 

Q. — How much, according to your best judgment ? A. — It strikes 
me, the first quarter I received fifty dollars of the one hundred dollars. 
That is my memory after a lapse of twenty years. I wouldn’t say 
that was a fact. 

Q. — Whether or not, at this conversation which you say you had 
with Judge Day in the court-house, he gave you to understand that 
some time a payment or assessment would be made ? 

Mr. Thompson. 1 object to that certainly. What he said about 
it; that is too indefinite as it is. A. — Well, I have stated in a 
general way my recollection of the matter: the fact was stated that 
there had been a large expense incurred in obtaining the office, but 
there was no demand made on me for any payment. 


208 


HEARING —JOSEPH M. DAY. [March, 


Q. — How was this stopped out of your salary ? 

Mr. Thompson. He didn’t say it was. 

Mr. Harriman. He thought it was. 

Witness. That was according to my recollection. 

Q. (By Mr. Harriman.) —How was it stopped out? 

The Chairman. That needn’t be gone into. 

Q. (By Mr. Cook.) —From whom did you receive your pay? 
A. —From deputy collector Chipman. 

Q. — He was the proper officer for that purpose? A. — Yes, sir. 

Q .—It was his duty to pay? A .—I suppose it was: I always 
did my business with him. 

Cross-Examination. 

Q. (By Mr. Thompson.)— You say you are not sure now as to 
the transaction, whether it was stopped out of your pay or not? 
A. —I think I might say there was a certain sum deducted from 
m3’ salary. 

Q. — And it was done with your consent? A. — Certainly. 

Q .—And approval? A .—Yes, sir. 

Q. — And 3 T ou understood you were under no obligation to relin¬ 
quish your salary or an}’ part of it? A. —I repeat, I never had an} r 
demand made on me for payment. 

Q. — You understood, at the time it was stopped, there was no 
obligation on your part to relinquish an}’ part of the quarter’s pay? 
A. — I didn’t understand that there was, sir. 

Q. — So you did that voluntarily at the time? A. — Certainly. 

Q. — As your own free will ? A. — Certainly. 

Q. — And the particular details of the transaction you have no 
recollection of? A. — I haven’t. 

Q. — Whether the whole amount was paid you, and you paid back? 
A. — I can say it was simply a transaction of a remittance, so much 
less my assessment. 

Q .—After the conversation there, that was the result of it? A. 
— Yes, sir. 

Q .—You didn’t understand that you were paying for any bribe? 
A. — Not at all, sir. 

Q. —You didn’t? A. — No : couldn’t bribe me any way. 

Q. — Did you understand that you were trying to bribe Judge 
Day? A. — Not by any means. I don’t know that Judge Day ever 
received a dollar of that sum. 

Q. —Did you take it as being a bribe to Judge Day? A. — Not 
by any means. 

Q .—Did you intend that as in payment of your appointment at 
all? A. — I don’t know about that. I supposed of course it con- 


1882.] 


SENATE —No. 150. 


209 


tributed for some purpose: as for any agreement, there wasn’t a 
word said. 

Q- —And where your money went, you say you never knew? A. 
— No, sir. 

Q' — And you didn’t hold } r our office on any condition of payment? 
A. —Not at all, as I understood it. 

Q -—You never heard of any thing of the kind? A. — No, 

sir. 

Q • —You signed a receipt for a hundred dollars? A. —Yes, sir: 
whatever the quarterly salar} r was. 

Q- — Then, so far as any thing appeared on the record, there was 
nothing to appear but what you received it? A. —No, sir. 

Q. (By Mr. Harriman.) —You circulated petitions in favor of 
Judge Day’s appointment? A. — Yes, sir: I did. 

Q. — How zealously ? 

The Chairman. Never mind about that. 

Q. (By Mr. Bruce.) —At other conversations was there any thing 
said to 3’ou before your appointment that any payment would be ex¬ 
pected by 3011 for Judge Day? A. — Not pa} 7 ment. I was under¬ 
stood to render what service I could, but no payment. 

Q .—From nobod} r was there any thing said about any money 
pa}*ments ? A. — Not that I remember. 

Q. — Did you express am" surprise when the deputy collector de¬ 
ducted fifty dollars? A. — I wasn’t surprised. I had lived there 
several 3"ears, and moved around the political circle, and knew what 
the custom was. 

Q. —You didn’t expect it was taken out for an3 T general campaign 
purpose at that time? A. — I couldn’t sa3". I would not sa3 r . 

Q .—You didn’t suppose it would be taken out for campaign pur¬ 
poses? A. — I don’t think that was m3" impression at the time. 

Q. (B3 r Mr. Thayer.) —Previous to this time, a Democrat had 
been there? A. —I don’t remember. 

Q .—You had turned over, as Judge Day was at that time a Re¬ 
publican? A. —Yes, sir. 

Q. — And 3"ou got your little office, the heaviest work of which 
was, as 3 T ou sa3 T , to give receipts once a quarter? A. — That was 
the principal part of it. 

Q. (B3" Mr. Harriman.) —You would not have objected to pay- 
ing the other half of 3 T our salary, would you? A. — I don’t 
know. 

Q. (B3" Mr. Bruce.) —Were there any other deductions after the 
first? A. — No, sir. 

Q. (By Mr. Harriman.) — How long did your office last?. A. — 


I 


210 HEARING — JOSEPH M. DAY. [March, 

0 

I think two years under Judge Day and Mr. Swift. It was very 
short-lived. 

Q. (By the Chairman.) —Did you have any similar deductions 
under Mr. Swift? A. —No, sir. 

Adjourned till Friday, March 10 , at 10 o’clock a.m. 


1882.] 


SENATE —No. 150. 


211 


EIGHTH HEARING. 


Boston, Room 10, State House, 
March 10, 1882. 

The hearing was resumed at 10.15 a.m., the Chairman, Senator 
Jennings, having called the Committee to order. 

The following extracts from the testimony offered in the inmstiga- 
tion of 1881 were indicated by counsel for the petitioners, and 
agreed upon as part of the case in this investigation. 

CHARLES THACHER, 2d. Sworn. 

[Testimony taken in 1881.] 

f 

Direct Examination by Mr. King. 

Q. —You are register of probate and insolvency for the county of 
Barnstable? A. — I am, sir. 

Q. — How long have } r ou held that office? A. —I am now upon 
my second term. Towards eight years, — seven years or thereabouts. 

Q — Have }*ou the papers in the case of the estate of Seth T. 
Nickerson? A. —I have. 

Q. — Will you produce them? [Witness produced the papers.] 
Will you examine the papers, and state when an administrator was 
appointed upon that estate, and who he was? A. —The adminis¬ 
trator was appointed the 19th of November, 1872; and his name 
was Eleazer Nickerson. 

Q .—By whom was the decree made appointing him? A .— 
Joseph M. Day. 

Q. —Will you now look at the inventory of the estate, and see 
if the schooner “Benjamin English” is one of the items? A. 
[Reading.]—Schooner “Benjamin English,” appraised at $1,200, 
is the first charge upon the personal estate in the inventoiy. 

Q. —Now will 3 ’ou take the account rendered by Eleazer Nicker¬ 
son, and give the items on the account from one side and the other? 
A. — Both sides? 

Q. —Yes, sir. A. —Amount of personal estate account, inven¬ 
tory, $2,597.81. Amount received from gain by sale of personal 
estate and appraised value and from other property, as follows: 
Amount received on the appraisal, $196.04 ; amount received from 
sale of real estate, by license, $2,106.60; amount received, gain 


212 


HEARING —JOSEPH M. DAY. 


[March, 


on sale of personal property, $21.01, — amounting to $4,921.46. 
Amount paid out and charges, as follows: Allowance to widow by 
judge of probate, $600 ; error in appraisal, goods appraised belong¬ 
ing to Mrs. Nickerson, $83.25 ; error in appraisal, notes of Sylves¬ 
ter Baker, said notes not being found, $100; administration and 
expenses, $601.31, — amounting to $1,384.56. 

Q. — What is the date of that account? A .—The date of the 
decree is the 9th of September, 1873. ) 

Q. — Now will you examine the papers and see if the estate was 
represented insolvent? and, if so, when? A. — By a decree made 
on the 10th of December, 1872, on representation of Eleazer Nick¬ 
erson,\he estate of Seth T. Nickerson was made insolvent at that 
time. 

Q. — Now will you examine the claims presented, and state 
whether the judge of the court presented a claim against the estate? 
A. [Reading.] —The subscribers, commissioners appointed by said 
court to examine all the claims against the estate of Seth T. Nicker¬ 
son of Dennis, deceased, return and find among the charges, J. M. 
Da} r , Esq., bill on libel suit, $35. That is among their charges. 
Signed, E. O. Baker, 2d, and Freeman Rogers. 

Q. — Now will }x>u look to the order of distribution, and see who 
signed that order, if there was one, — who made the order of distri¬ 
bution ? A. — Whose handwriting ? 

Q. —No: who signed the decree? What judge? A. —J. M. 
Day. 

Q. — Do you find his name among the creditors there? A .—I 
do, sir. . 

Q. —State what that is. A. —J. M. Da} r , $35. 

Q. —Is it receipted for? A. — It is receipted for by J. M. Day. 

Q. — Do you know his handwriting? A. —Yes, sir. 

Q. — Is that his name receipting for that money there? A. — I 
should say it was, sir. 

Q. —What is that stated to be for? A. — Nothing, except the 
figures and money to the amount of $35 in the distribution. 

Q .—Was this estate administered after you came into office? 
A. —It was closed before I came in ; about one year, or somewhere 
thereabouts. 

Q. — Have you the papers in the case of Willard A. Crowell? 
A. —I have, sir. 

Q.—Was there an administration granted upon his estate? and, 
if so, who made the decree? A .—The decree granting administra¬ 
tion to Alice Crowell, the widow of W. A. Crowell, was made on 
the 16th of September, 1873, by Joseph M. Day. 

Q. —Have you the inventory there? A.—I have, sir. 


1882.] 


SENATE —No. 150. 


218 


Q • —AVliat is the amount of the inventor} 7 ? A. —The amount of 
the inventory,—real estate, nothing; personal estate, $350.75. 

Q • — Have you the papers in the insolvency case of Noble P. 
Swift? A. — I have, sir. 

Q. (By Mr. King.) —Will you state if a voluntary petition in 
insolvency was filed by Noble P. Swift? A. [Reading.] —Respect¬ 
fully represents Noble P. Swift of Sandwich, in Barnstable County, 
butcher — 

Q.—Well, you find that a petition of insolvency was filed by 
Noble P. Swift? A. — Yes, sir, I do. 

Q. —What day? A. —The twenty-first day of March, 1867. 

Q. —Are you able to state from your papers, or docket, what 
judge sat through that case? A. — I was not ordered to bring the 
docket, and have not brought it. Judge Day sat in the case, I pre¬ 
sume ; but I cannot say, as I was not register at that time. 

Q. — Was there a discharge granted? and, if so, when? A. — 
The discharge would not be in the papers. The discharge would be 
in the docket. I cannot state when the discharge was made. The 
discharge issues from the court; and a record is made of the same, 
and it would be upon the docket. I cannot tell you what day the 
discharge was made. 

Q. — Did not the subpoena ask you to bring the docket? A .— 
No, sir: it called for me to have in my possession, especially, all the 
original papers on file in the probate office in the case of Seth T. 
Nickerson, late of Dennis, deceased, and in the case of Willard 
Crowell, late of Barnstable, deceased, and also the original papers in 
the case of Noble P. Swift. 

Q .—You will produce the docket, will you? A. — I have not 
produced the docket, because I have not been called upon to do so. 

Q. — You will produce it? A. —I will, sir, upon a proper order. 

Q. —Will you examine the papers, and see if there was a protest 
filed against the sitting of the judge in that case ? A. — I find in that 
case a protest of Emily Harrison filed April 23, 1867, attested by J-. 
Higgins, the register at that time. 

Q. — Will you read it? A. [Reading :] — 

“ Barnstable, ss. / 

In Insolvency. 1 

“In the matter of Noble P. Swift, claiming to be an insolvent debtor, Emily 
Harrison, widow, of Barnstable, represents that she is interested in said estate 
in a verdict against him, which is of record in the Superior Court, upon which 
judgment has been rendered in said court, said claim being admitted by said 
Swift in his schedule of indebtedness. That she claims and alleges that said 
Swift has been guilty of great frauds in the growth of apparent debts to show 
good and apparent insolvency, and desires the fullest investigation thereof be¬ 
fore an impartial court. She protests against the action and sitting of Joseph 


214 


HEARING —JOSEPH M. DAY. [March, 


M. Day, judge of the court of insolvency, in said case. 1. Because said Day is 
a creditor of said Noble P. Swift. 2. Said judge was counsel for said Noble P. 
Swift in the suit in which her said claim arose, and has been the legal adviser 
thereof. 3. Said judge has, in the trial of said case, accused her of mercenary 
and dishonorable motives therein, and has shown an evident bias against her 
and her demand. Wherefore, because said judge is not as fair and impartial as 
might be, she protests he ought not to sit and act in said case, and makes this 
protest at the commencement in said suit. 

• (Signed) “Emily Harrison.” 

Q .—Now let me ask you about the charges made in the probate 
court. When letters of administration or guardianship are issued, is 
there any charge? When letters of guardianship or letters of ad¬ 
ministration are made in the county of Barnstable, are any charges 
made ? A. —To that question I say, No, sir: no charge has been 
made. 

Q. —Have 3*011 been in the habit of receiving any money from par¬ 
ties to whom 3 ’ou have issued letters of guardianship or letters of ad¬ 
ministration ? A. — I have, sir. 

Q. — Will 3*011 state to the Committee how much? A. — It has 
been the usual custom in the county of Barnstable, by nw prede¬ 
cessors in office and b 3 T m 3 *self, for parties applying at that office, as 
the 3 7 usually do, in cases of administration, — the custom is to appl 3 r 
to the register to fill the papers. In that case I make the petition 
and fill the bond. I fill the affidavit and notice to be posted up. I 
make a copy of the citation which goes to the paper, all of which is 
not my dut 3 *, as register of probate, to do. And in that case I charge 
one dollar. I had been in the habit of doing it, and was restricted 
about two or three weeks ago by the examiner of accounts. The 
savings bank commissioners notified me that there had been com¬ 
plaints made at their office that I was making that charge. Mr. 
Curry, one of the bank commissioners, came down and saw me last 
week at the sitting of our court on the 8 th of March ; and he told me 
he was in great doubt in the matter whether I was acting as counsel, 
or whether I was simply doing that work clerically, and that he 
would write me and let me know whether I was wrong in the matter. 
If 1 had not a right to do that, he would let me know. A few days 
after that I received a letter from Mr. Curry, stating that, in their 
opinion, I had not a right to do that; and since that time I have 
ceased filling the papers in cases in that office. 

Q. — Isn’t the practice of taking this dollar, which you speak of, a 
general one, so that you received it always, practically when the 
letters go out? A. — No, sir : unless I fill the papers it is not so. 

Q — Can you recall any case, say within the last year, where you 
have issued letters to parties and have not taken the dollar? A. 


1882.] 


SENATE— No. 150. 


215 


[after hesitating a few moments]—I don’t remember at this mo¬ 
ment any case wherein I have not, but I know I have not done so. 
Where a counsel had presented the papers themselves, and they had 
been filled — Mr. Marston in certain cases has presented papers to 
the court in which I made no charge, and I didn’t ask for any 
thing. 

Q. —Now, since you have spoken of Mr. Marston, let me ask 
whether, within a year, } t ou have called for a dollar to pay for let¬ 
ters of administration to a client of his ? A. — I think very likely I 
may have done so. 

Q. — How much money did 3^011 take in the run of a year in this 
way? A. —Well, I stated before the bank commissioners the other 
day, in thinking it up, and looking at the number of cases passed 
upon by Judge Day in the run of a year, and 1 think it would not 
vary greatty from two hundred and fifty or seventy-five dollars. I 
stated three hundred in round numbers. 

Q. —This, you say, has been the practice in the court ever since 
you knew it. A. — Ever since I knew it. 

Q .—Is this dollar taken from parties in open probate court? 
A. — In open probate court. 

Q. —Is it allowed as an item in the accounts? and does the admin¬ 
istrator charge for it? A .—Usually the charge is made for it, and 
he is allowed for it. 

Q. —Has the judge been cognizant tkat- 3'011 have been taking this 
dollar? A. —That I cannot say, sir. 

Q. — Have you had any talk with him about it? A. — I never 
had any talk with Judge Day about it until after the passage of the 
Act of 1879. I then asked him the question whether I could legally 
fill these papers, or not. And Judge Day told me at that time — and 
Mr. Ilarriman, I think, told me at the time — that it was nothing to 
do with the commissioners. If I saw fit to make the charge, I had a 
right to do it, provided I injured no one. 

Q. — You will remember, Mr. Thacher, that the General Statutes 
prohibited judges or registers from taking such fees as judge or 
register? A. — Yes, sir : I think they did. 

Q, _The statute of 1879 prohibited their taking those fees in the 

capacity of attorney or counsel, didn’t they? A. —I so understand 
them. 

Q, _After the passage of that statute, as I understand you, you 

brought the statute to the attention of Judge Day, and he advised 
you it was proper to charge these fees? A. — Not at all. 

Q._Will you state to the Committee what it was? A. — He 

gave me no advice in relation to that matter; but he said, in his 
opinion it was not a matter for the bank commissioners to decide 


HEARING — JOSEPH M. DAY. 


216 


[March, 


upon. I kept on upon my own responsibility in making that charge, 
and not by the advice of Judge Day or an} r other man. 

Q. — Haven’t you stated to Mr. Curry, the examiner of accounts, 
recently, that you continued to make these charges of a dollar upon 
the papers issued? I am proposing to ask if he has not recently 
stated to Mr. Curry, the examiner of accounts at Barnstable, that he 
made this charge of a dollar upon the papers under the advice and 
approbation of the judge of the court? A. — To that, sir, I say, 
No, sir. 

Mr. Gooch. I did not suppose he could come in here and testify 
to what he told other people. 

The Chairman. I think it may be competent with reference to 
testimony hereafter. 

Q. (B}’ Mr. King.) —You said nothing of the sort. A. — That 
will bear a little— [pause] —there is a doubt about that. I said I 
have advised with counsel in relation to the matter, and was told that 
they, as the bank commissioners and examiners of accounts, had 
nothing whatsoever to do with that matter, and I should not return it 
in my returns to the secretary, of fees received by me as a register 
of probate. 

Q. —Well, let us understand each other. A. —Yes, sir. 

Q. — Did you confer with the judge of probate—let me ask you 
generally — upon the propriety of your continuing that charge of a 
dollar, or didn’t vou? A. —I don’t recollect I ever did. 

Q .—Do you recollect you didn’t? A .—I don’t recollect I 
didn’t do so either. You asked me if I didn’t or did? 

Q. — I ask you whether you didn’t, or did? A. —I have no recol¬ 
lection of having ever conferred with Judge Day in regard to that 
matter. 

Q. -—Let me recall to your mind, then, in order that there ma}" not 
be an}- misunderstanding about this — what did jxm say to him when 
the statute of 1879 was passed? A .—I recollect one da} T in the 
office speaking to him in regard to that matter after the Act had 
passed, and I think Mr. Harriman was present at the time, — and he 
is here now, I believe, — and, to the best of my belief, Mr. Day’s 
answer was, to the question I asked him in regard to whether I 
should make any return of any charges made by myself,—the best 
of my recollection was that Mr. Day said that the bank commission¬ 
ers had nothing to do with that matter, and they had nothing to do 
with the register of insolvencv. 

Q. — Let me ask you this, Mr. Thacher, whether it is true that the 
judge did assure you that you had a right to make a charge in case 
you injured no one? A. —He never made that answer to me. 

Q. —Well, then, will you explain the leason why you gave that 


1882.] 


SENATE—No. 150. 


21T 


answer to me when I began to examine 3*011 upon this question ? [After 
a pause,] No matter, sir: I won’t press 3*011 to answer. A. — I 
do not recollect, Mr. King. Mr. Da 3 r has told me, and perhaps I 
nuiy have varied the phrase in some wa 3 *, that the bank commission¬ 
ers had nothing to do with it; that he thought they had not an 3 7 juris¬ 
diction in the matter; and that, if I made extra charges, and parties 
called upon me in the county, as they were habitually doing, — be¬ 
cause 3 *ou know 3 *ourself, having practised in that count 3 ^, that it was 
the usual custom for parties to apply to the register of probate, : — 
Mr. Hopkins has done it, and Mr. Marston has done it, who pre¬ 
ceded him, —that it was the usual custom there for the registers to 
fill all papers, and charge a dollar; that including all postage paid 
b 3 * me. And I realty cannot recollect; but I know one thing, that 
Mr. Da 3 T has never in his life attempted or tried to evade, as far as I 
know, an 3 * thing that would be illegal. He has never tried to push 
upon me or to uphold me in holding an 3 * fees that did not property 
belong to me. 

Mr. King. I may have, Mr. Chairman, occasion to call Mr. 
Thacher again for some point. I do not think I have any thing 
further now to ask him. 

The Chairman. Counsel for the respondent ma 3 7 examine the 
w’itness. 

Cross-Examination by Mr. Goocii. 

Q. —You say that the course you have pursued in this matter has 
always been pursued in that court, so far as your recollection or 
knowledge goes? A. —Ido. 

Q . —And b 3 * Judge Da 3 7 ’s predecessors in office? A. —Yes, sir. 

Q .—And also by 3 * 0111 * predecessors? A. —B y m 3 7 predecessors 
in office as well. 

Q. — The service which 3 ’ou rendered was mere clerical service? 
A. —Merety clerical. 

Q. —And how would it be in the matter of a charge? Was the 
writing, simply as a matter of writing, what could probabty* be ob¬ 
tained elsewhere at the prices which the 3 7 paid you? A. — Not at 
all: no, sir. 

Q. — Would it cost a far greater amount? A. — Very much 
larger: probabty five times as large. 

Q. — In the matter of the protest that 3*011 referred to, do 3 *ou 
know airy thing of the circumstances under which that protest was 
made? Do you know in whose handwriting it was, — in the case of 
Noble P. Swift ? A. — Yes, I know from the appearance of it; I judge 
from the appearance of it. 

Q. —In whose handwriting was it? A. — 111 George A. King’s, 
in my opinion. 


218 


HEARING —JOSEPH M. DAY. 


[March, 


Q. —Will j T ou state how long you have been in the probate office 
as register, or all together? A. —I have been in that office twelve 
3 r ears the first day of last April. 

Q. —Now, has Judge Day ever received one cent, or been in any 
way, directly or indirectly, benefited b}' any thing which you have re¬ 
ceived, or which has been paid you for any service? A. — Never 
one cent. 

Q. — Will you state to the Committee exactly and fully what 3 T ou 
do for one dollar? A. —The dollar that I have been in the habit of 
making a charge of is for this : whenever I charge a dollar I make 
the petition, I make the bond, I make the affidavit of notice, the no¬ 
tices of file and posting-up, a cop 3 r of the citation which goes to the 
paper for publication, and mail the papers to the parties entitled to 
receive them, —all of which, I contend, is no part of m 3 r business as 
register of probate and insolvency to do. 

Q. — Suppose there is an application for the sale of real estate, in 
addition to the other papers 3 r ou state, do you make that out also? 
A. —Yes, sir : I make that out. I fill all the papers in the case. 

Q. —All covered by a dollar? A. — Yes, sir: all covered b 3 * a 
dollar. 

Q. —Now, state-what would be the effect upon the parties in the 
court, provided you refused. That is, I mean to sa 3 ", who would do 
them? How would the 3 r get the work done which 3 'ou do? A. — 
The way it would be done would be by applying to counsel, or else 
doing it themselves; and they probabty would be improperly done, 
and have to be returned without acceptance b 3 r the court. 

Q. —How is it in your probate courts? are they usually pretty full? 
Do the railroads run so as to bring parties there conveniently? A. 
— Yes, sir. 

Q. — And how is it about the trains ? do the 3 T run so that peo¬ 
ple who want to come up have comparative^ short time before they 
are obliged to return? A. —Yes, sir. The morning train brings 
them up very early from Provincetown and the stations between 
there and Barnstable. The 3 ' are obliged to go down at half-past 
eleven. 

Q. — I understand 3 T ou to sa 3 T that this dollar covers all correspond¬ 
ence? A. —Entirely : covers all mail matter and postage. 

Q. —Well, how is it about correspondence? are you obliged fre¬ 
quently to pay postage of these papers? A. —Oh, yes ! constantly, 
and do it all the time. 

Q. — So that there is quite an item of postage in connection with 
this business? and can you state to the Committee, or approximate, 
your postage-bill incurred in consequence of this service ? A. — Yes, 
sir: I will state that I can produce receipts showing my postage-bill 


1882.] 


SENATE — No. 150. 


219 


to be somewhere about sixty dollars a year, or fifteen dollars a 
quarter. I do not pay m 3 ’ postage-bill except quarterly. The bill is 
due Mr. Lee, and I presume it is about fifteen dollars a quarter. 

Q' —Now, if you did not send out these letters by mail, and take 
care of them there for the parties in probate court, what would be the 
result? would they remain in the court? A. — They would remain 
there, and part of them would have to come there and get them. 

Q • — Do }’ou consider that you are subject to the control of the 
judge in any respect? A. —Not at all. 

Q -—Wholly independent? A. —Wholly independent, entirely. 

Q • — What has been the arrangement of the trains recently? Until 
recently has it been so that the people on the Cape have been coming 
down on the half-past eleven train, and going back at half-past 
two? A. —Yes, sir. A few months ago a change w r as made in the 
trains, so that the afternoon train runs later now: it runs at 4.01. 
For a good many years back the afternoon train has left at half-past 
two, or 2.29 ; going down at 11.29, and going back at 2.29. 

Q • — In consequence of this arrangement of trains, has it not hap¬ 
pened that there has been a great pressure for the rapid transaction 
of business in the probate court during the time between trains? A. 
— Yes, sir. 

Mr. Gooch. That is all at present. 

lie-direct Examination by Mr. King. 

Q. —Let me ask 3 ’ou, Mr. Thacher, if }'ou have made any inquiry 
to ascertain whether there is an}’ other probate office where this has 
been charged? A. —I have made no inquiry. 

Q. —You spoke of the practice formerly when Mr. Marston was in 
the office. Have you any knowledge of an}’ such practice there? 
A. — Yes, sir. 

Q .—Your personal observation and knowledge of it? A. — I 
only find other charges that I have seen made by Mr. Marston as 
register to that effect. 

Q. —You state now that he charged a dollar for the papers issued? 
A. — I state that he made charges sometimes a dollar, and sometimes 
less. 

Q. — For papers that he issued such as you charge a dollar for ? — 
you say that, do }’on? A. —I do, sir. 

Q. —Now, Mr. Thacher, you spoke of the necessity for the rapid 
transaction of business between trains. Let me ask you if you recall 
a probate court at Harwich, I think, some time ago, where the judge 
went down on the morning train and returned, — that was before the 
afternoon train was made later, — the judge went down and attended 
to a few of the suitors, and returned on the afternoon train? A. —I 


220 


HEARING —JOSEPH M. DAY. [March, 


have no recollection of that, sir. It was not our custom. We 
usually came down to Harwich — the judge did— at noon, and fol¬ 
lowed down to Orleans until that court was abolished, then to Well- 
fleet, upon the circuit, and then to Provincetown. I have no recol¬ 
lection of Judge Day’s ever going back upon the afternoon train. 

Q. —Let me recall to 3 *our mind, if I can, an instance which hap¬ 
pened about the time of the death of Mrs. Smith, the daughter of 
Daniel Scudder ; perhaps you recall her? A. —I do. 

Q. — Whether there was a court down on the Cape on the day of 
the funeral, — do 3*011 remember? A. — No, sir, I do not remember. 

Q. —You cannot recall any thing about that? Now, you say, Mr. 
Thacher, that 3*011 have acted in all these matters in entire independ¬ 
ence of the judge? A. — Entirely and wholly. 

Q. —Now I want to ask you a question which I did not think I 
would ask you before, whether there has been any time during 3 *our 
incumbency of this office when Judge Day* has had 3 * 0111 * resignation 
in his possession? A. —Yes, sir. 

Mr. Burdett. To what specification does this apply? 

Mr. King. This applies to what he has just said about his entire 
independence down there in the office, which 3*011 brought out. 

Mr. Burdett. The question was whether Judge Day had any con¬ 
trol over his receipt or detention of airy fees arising in his office ; 
and, unless your question is to that, we cannot see the bearing of it. 

The Chairman. The witness has already answered that there was 
a time when the judge held his resignation. 

Q. (By Mr. King.) —Now I will ask you, up to how recent a time 
did the judge hold your resignation? A. — Well, I cannot tell you, 
sir. It was before this matter came up. He concluded he would 
hand it back to me, and he did. 

Q. — Within two or three weeks? A. — Oh, no! three or four 
months ago. 

Q. —I will ask 3*011 another thing, Mr. Thacher, in connection 
with this matter of independence: Whether or not last Sunday 
Judge Da 3 r sent for you, and had a long interview with you in the 
probate office at Barnstable? A. —He sent for me last Sunday: 
yes, sir. 

Q. —And you and he went and unlocked the probate office, and 
went in there? A. — I found the probate office open, and went in 
and found Mr. Da 3 * there. 

Q. — How long a conference did you have with him there then? 
A. —Perhaps an hour and a half, or thereabouts. 

Q. —And the subject of the conference was what? A. — Nothing 
whatever, excepting that I carry the keys to certain desks that Mr. 
Day could not get at; and he was desirous of looking at certain papers 
of a case. 


1882.] 


SENATE —No. 150. 


221 


Q' —What papers were those? A. —The case of Noble P. Swift, 
and those papers. 

Q !• — Any thing else ? A. — Nothing more. 

Q> —Nothing but those? A. —Nothing but those. 

Q • — Did you have an}'conference with him upon the subject of 
this proceeding on these papers? A. — No, sir. 

Q • — Not a word? A. — Not a word; and he said distinctly to 
me, “For God’s sake, Mr. Thacher, don’t speak to me about it! ” 
That was his very answer to me. 

Q- —Then you were proposing to speak about it? A .—I did, in 
sympathy with the man, and supposing he felt badly; and that was 
the answer he made. I produced the papers, and that was the con¬ 
versation as far as the case was concerned. 

Mr. King. That is all. 

CHARLES THACHER. Recalled. 

Q. (By Mr. Gooch.) —Are you willing to state to the Committee 
in substance why your resignation was requested? A. —Yes, sir. 

Q. —You will please state. A. — It was on account of my habits. 
I am in the habit, occasionally, or had been in the habit, of getting 
intoxicated, — drinking too much. And Judge Day has used me 
more as a father, and taken better care of me; and it w r as from that 
fact,—not from dereliction in office, or an} 7 failure to perform my 
duties, but from that fact, — that the resignation was held in Judge 
Day’s hands. He gave it up to me because he thought I had re¬ 
formed, and done better. He handed me back my resignation. 

Q. —Didn’t Judge Day take that resignation after conversation 
with you, notifying you, that, if you got intoxicated again, he should 
forward that resignation to the Governor? A. — He did, sir. 

Q. — And that he held it simply to control your action? A. — He 
did, sir. 

Cross-Examination by Mr. King. 

Q. —Mr. Thacher, will you state how long he held it? A. — He 
held it from the probate court in November at Falmouth, until three 
months ago,—from a year ago last November until within, perhaps, 
two or three months ago. 

TESTIMONY OF SMITH K. HOPKINS. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. —Your fall name, Mr. Hopkins? A. — Smith K. Hopkins. 

Q, — You reside at Barnstable, and are clerk of the courts? A. — 
I am, sir. 


222 


HEARING —JOSEPH M. DAY. [March, 


Q. —Have you brought with you the papers in the case of Harrison 
v. Swift? A .— I have, sir. 

Q. —And the docket? A. —Yes, sir. 

Q. —Will you examine your docket, Mr. Hopkins, — have you got 
it? A. — I have, sir. 

Q. —And state to the Committee when that case was entered, 
when it was closed, and when it went upon the docket? A .—The 
case was entered at the September term, 1875, before the terms 
changed. 

Q. — Will you state the full name of the case to the Committee? 
A. — The case is Emily Harrison v. Noble P. Swift. 

Q. — In the Superior Court, advanced? A .—In the Superior 
Court, advanced. 

Q. — At the September term, 1875? A. —September term, 1865. 

Q. —Who was counsel for the defendant by the docket? A. —It 
appears from the docket that Mr. Day, — the name of Day is written 
only : I suppose it is Judge Day. 

Q. — Can you make that comparatively certain by reference to the 
papers in the case? You know his handwriting? A .—I do, sir. 
[Refers to the papers.] I do not seem to see any here. 

Q. —Isn’t there an answer? A. —Here is an affidavit signed by 
Mr. Da} r ,—Joseph M. Day. 

Q .—When was the case tried, if 3 ’ou find it was tried by 3 ’our 
docket? A. —September term, 1866, it was tried. 

Q. — What came of it after that? A. — There was a motion for a 
new trial, which was overruled ; exceptions were taken to the Su¬ 
preme Judicial Court, entered at the January term, 1866, in Boston. 

Q. (By Mr. Day.) —January term? A .—January term, I said, 
sir. 

Q. — 1866? A. —Yes, sir, 1866. 

Q. — Why do you say 1866? A. —Yes, sir, I still repeat it,—• 
from the docket, — tried in 1866, and the exceptions were dated Jan- 
uarv, 1866. 

Q . (By the Chairman.) — Following? A. — Evidently an error. 

Mr. King. The January term holds through the year, and they 
were entered that } T ear. 

The Witness. It is not in my handwriting. 

Mr. King. That is all correct. 

Q. (By Mr. Talbot.) —Were the exceptions overruled at the Jan¬ 
uary term, 1866 ? A. — The exceptions were overruled. Judgment 
on the writ was ordered to be entered at the last term, — September 
term, 1866. It don’t appear, sir, except that it was after the Janu¬ 
ary term, 1866. 

The Chairman. I understand the apparent error is explained by 


1882.] 


SENATE —No. 150. 


228 


the fact that the January term, 1866, was a session in November, 
1866. 

Q. (By Mr. King.) — If you will be kind enough to look at the 
rescript, Mr. Hopkins, that will show what the court ordered, and the 
time when it was ordered. A .—The rescript is dated Oct. 22 , 
1866 . 

Q • — And that ordered judgment? A. — Exceptions overruled, 
judgment to be entered as of the last September term of the Superior 
Court, county of Barnstable, 1865, — in 1866. 

Q. —Now, will you look at the docket and see how long the case 
continued in the court where judgment was entered and execution 
issued? A .—It does not appear from the docket when the execu¬ 
tion was issued. It only appears that judgment was entered accord¬ 
ing to the rescript. 

Q. —What is the date? A. —It only appears that judgment was 
entered according to the rescript: it don’t give the date. The re¬ 
script orders it to be entered as of the last September term, 1866. 

Q. — Please look and see if the case was on the docket in the April 
term. A. —This is an old docket which I found in the office on the 
day when I received the subpoena. I never examined it until then. 
At that time it appears that the clerk kept one docket only, and kept 
all the record, and made all the entries under one heading. It don’t 
appear in the book 011 I 3 ’ in this place. 

Q. —Haven’t } T ou any thing there to show whether the case was on 
the docket at the April term, 1866? A .—What time, sir? 1866 or 
1867? 

Q. — Haven’t you any thing here to show whether it was on the 
April term, 1867? A. — There is nothing to show, sir, except that 
entry on that page. 

Q. —Was not there another docket kept? A. —Not at that time, 
sir, that I can find. This extends from 1861 to 1868; and that is 
the only place in which it appears, that I can find. The records of 
the several years were all kept under that head. 

Q. —Well, there were separate dockets kept for each court, were 
there not? A. — No, sir: not at that time. I think 1869 was when 
we first commenced to keep a separate docket for each term. 

Q. _Do you find any papers to indicate that that case was on the 

docket at the April term, 1867? A. — No, sir, I do not. 

Q. —Does the paper that you have in your hand show it? A. — 
It does not show that it was on the docket, but simply that the costs 
were taxed in 1867. 

Q. — Have you an} r papers showing that it was in court in 1867? 
A. — I see nothing, sir. 

Q. — Don’t you find that the clerk taxed the costs for the term of 


224 


HEARING —JOSEPH M. DAY. [March, 


1867? A. — Yes, sir, I do; but it might have been off the docket. 
It happens frequently that a case goes off the docket, and the costs 
are taxed. 

Q. (By the Chairman.) — Do I understand that the bill of costs 
shows that they were taxed for the April term? A. — No, sir. I 
should say from this paper, which I never saw before, that the term- 
fee and travel for 1867 were taxed in this bill. 

Q. — Were taxed ? A. — Yes, sir. 

Q .—Does that indicate whether it was on the docket? A. — It 
would have been on my docket. 

Q. (By Mr. King.) —Well, it shows it was in court, don’t it? 
A. — I should say it was, although judgment was entered the term 
before. 

Q. —Judgment was ordered in vacation, was it not? A. —Yes, 
sir : to be entered as of the last term. 

Q. — There was no court in session at the time the rescript came 
down? A. — I cannot sa}’, sir: I should not dare. 

Q. — Cannot you tell from your docket? A. — I cannot from this 
book, sir. 

Q. — In your record of original execution on file, is there any thing 
in the clerk’s office to enable you to determine whether that case was 
in court, on the docket, in the April term, 1867? A. —Nothing I 
have ever seen, sir. When this subpoena came, I went to the papers 
and took them out, and have not seen them since or before. 

Q. —Then I must ask 3*011 to examine your papers and that record 
with reference to establishing that fact. A. — I can only examine 
this record here, sir: it is the onty record I have. 

Q. —Yes, I know; but for the purpose of producing that record, 
taking what original papers there are, — if 3*011 will take notice in 
the presence of the Committee that I want 3*011 to produce those 
papers, that will be all on that point. A. — I have produced all the 
papers that were in the envelope so far as I know about it. 

Q. —Now, so far as the papers on the docket show, Judge Day 
was counsel from the beginning to the end of the case, was he not? 
A. — His name was not stricken from the docket, sir, from an 3 T thing 
that appears here. 

Q. — Now, sir, have you'the petition filed b 3 * Nathan Crocker? 
A. — I have, sir. 

Q. —Will you produce that petition, and read the first part of it to 
the Committee? I won’t trouble you to go through with it, but 
simply that they may see what it is. A. — Yes, sir. [Produces the 
petition, and reads :] “County commissioners of the count 3 r of Barn¬ 
stable : Respectfully represents Nathan Crocker, administrator of the 
estate of Nathan Crocker, late of Barnstable, deceased, that, on the 


1882.] 


SENATE —No. 150. 


225 


ninth of December, current, he applied to the assessors of Barn¬ 
stable for the abatement of the tax assessed upon him as said admin¬ 
istrator ; and the said assessors refused to make the abatement; and 
a copy of said application and the refusal ” — 

Mr. King. I do not think, Mr. Chairman and gentlemen, that it 
is necessary to read that through. I think it is only necessary to 
read it so far as to show that he made it in his capacity as adminis¬ 
trator. 

The Witness. Here are the accompanying papers presented with 

it. 

Q. (By Mr. King .)—You were clerk for the county commis¬ 
sioners? A. — I am, sir. 

Q •—Were you present at the time that petition was presented? 
A. — I was present. 

Q■ —Did any counsel appear in opposition to that petition? A. — 
Judge Da}’ appeared, sir. 

Q • — As counsel against the petition ? A. — He came in and said 
that he appeared for the purpose of objecting to the consideration of 
the petition at that time, for the reason that the town of Barnstable 
had had no notice of the petition. 

Q. — Do you know whether he appeared as counsel, or not? A .— 
I suppose he did, sir. 

Cross-Examination by Mr. Burdett. 

Q. — In this last matter, were you acting as clerk for the Superior 
Court or clerk of the county commissioners? A. — Clerk of the 
county commissioners. 

Mr. King. I beg your pardon : I do not think he gave the date 
of this transaction. 

The Witness. The petition was filed Dec. 31, 1880,—the last 
day of December. 

Q. (By Mr. Burdett.) —Do you hold the office of clerk of courts 
and clerk of the county commissioners of the county of Barnstable as 
separate, distinct, and independent offices? A. — No, sir: I only 
receive one commission. 

Q. — Did you act as clerk of the county commissioners in your 
capacity as clerk of the courts, or simply as clerk of the commission¬ 
ers? A. — Well, sir, that I am unable to say. It is all included in 
one office. 

The Chairman. The statute provides, if I remember correctly, 
that the clerk of the court shall be also clerk of the county commis¬ 
sioners. 

Q. — Now, after the Supreme Court sent down a rescript, ordering 
entry of judgment as of the September term of 1865 or 1866, which- 


226 


HEARING —JOSEPH M. DAY. [March, 


ever it was, would it have been proper to carry forward the case on 
the docket any further than that term? A. — Any further than the 
term to which it was ordered to be entered ? I think, sir, the prac¬ 
tice is for a case to remain on the docket until the next term. 

Q .—Until the next term? Are there any term-fees taxable after 
the term for the entiy of judgment? A. — I alwa} T s tax term-fees as 
long as the case is on the docket. If the rescript come in January, 
I should tax the April term-fee, the case being on the docket. I do 
not know any other mode of taxing. 

Q. — Do you know the handwriting in which that tax stands? A. 
— Well, I should say it was Mr. King’s, although I would not swear 
to it. 

Mr. King. I have no doubt about it: it is mine. 

The Witness. I did have some doubt when I examined the papers. 

Q. (By Mr. Burdett.) —Who appeared as counsel for the peti¬ 
tioner for the abatement of taxes, in the case of which 3*011 have just 
spoken? A. — Counsel for petitioners, Mr. George A. King. 

Q. — How long had that petition been on file at the time Mr. King 
called upon the commissioners to go forward with the case? A .— 
Before Mr. King called for the petitioners to go on with the case? 

Q. — Yes. A. —I should say from twenty minutes to half an 
hour. 

Q. (B 3 " Mr. King.) —What is that? I did not hear. A. —How 
long had the petition been on file when you called on the commis¬ 
sioners to proceed to a hearing? 

Q. (By Mr. Burdett.) —Can 3*011 state when your attention was 
first called to the docket entries and other proceedings in the case of 
Harrison v. Swift? and b}' whom was your attention called to them? 
A. —The docket entries and the papers, do 3*011 mean, sir? M 3 " 
attention was first called so that I had occasion to look at them when 
I received the subpoena from the Chairman of the Committee. 

Q. — Had 3 *ou been waited upon previous to that time by an 3 7 per¬ 
son, for the purpose of examining those papers themselves, or hav¬ 
ing you examine them for him? A .—I think Mr. King was in the 
office one da 3 * some time ago, and looked at these papers ; and I think 
I saw them myself. I did not examine them or open them. 

Q. — How long ago was that? A. — Well, it is impossible for me 
to sa 3 *. About the same time that the petition was filed, or a week 
or two afterwards,—the petition to the county commissioners,— 
somewhere from the 31st of December to the 10th of Januaiy. 

Q. — When? A. — Between the 31st of December and the 10th 
of Januaiy, I should think. I will not sa 3 * certainty. 

Q. — Was that pending this petition for the abatement of taxes? 
A. — I think it must have been, sir. 


1882.] 


SENATE —No. 150. 


227 


Q- — Were } T ou present at the time when Mr. King appeared for 
the petitioner, and Judge Day for the respondents, in that matter 
before the count}' commissioners, first? A .— I was there present, 
sir. 

TESTIMONY OF ELISHA BASSETT. Sworn. 

[T6stimony taken in 1S81.] 

Direct Examination by Mr. King. 

Q • —Will you give your full name? A. — Eilisha Bassett. 

Q • — And you are clerk of the United States District Court? A. 

— Yes, sir. 

Q • — Will you refer to your docket, and see if there is upon it a 
case of proceeding against the schooner “ Benjamin English ” ? A. 

— I find such an entry on the docket. 

Q. — Please state what the case is. A. — It is a libel in admi¬ 
ralty by Marshall E. Chase against schooner “ Benjamin English ” 
for wages as cook and steward. 

Q. — What was the date of the filing of the libel? A. —The libel 
was filed on the 4th of March, 1873. 

Q .—Was there an answer filed? A .—The respondent’s answer 
was filed the same day. These papers came in at the same time. 

Q. — Who appears by your docket to have been counsel for the 
respondent ? A. — Day. 

Q. — Do you know what Da}' that was? A. — No, sir: I know 
no other lawyer b} T the name of Day; and I have some little vague 
recollection of Mr. Da} 7 and Mr. King having a suit at the court at 
that time. I have no doubt in my own mind what Day it w T as. 

Q. — Will you look at the answer, and see whose answer it is? 
Will you read the first part of the answer? A. — It was addressed 
to the judge of the District Court. “ And now' Eleazer Nickerson 
of Dennis of the countv of Barnstable, administrator of the late 
Seth T. Nickerson of said Dennis, deceased, intervening for his 
interest in the schooner 4 Benjamin English,’ and appears before 
this honorable court to answer the libel of Marshall E. Chase, etc.” 
Signed by Eleazer Nickerson. 

Q. — Do you know whose handwriting that is in ? A. — I do not. 

Mr. King. I think that is all at present. 

Cross-Examination by Mr. Burdett. 

Q. — How long have you been deputy-clerk in the District Court 
of the United States? A .—I cannot tell in reference to that par¬ 
ticular cpiestion. I was appointed soon after the law w T as passed for 
appointing deputy-clerks : my impression is, eight or ten years ago. 

Q. — How long have you been connected with the clerk’s office of 


228 


HEARING —JOSEPH M. DAY. [March, 


this district? A .— I think it is forty-one }’ears and three days, or 
four days. It was the 13th or 14th of March, 1840. I have been 
there ever since. 

Q. —And for the last ten years you have occupied the position of 
deputy-clerk? A. — Before that I was assistant clerk, and in the 
absence of the clerk was clerk pro tem., and acted for him. There 
was no law authorizing the appointment of a deput}’, until it might 
have been ten or lifteen years ago. 


TESTIMONY OF HI RAM P. HARRIMAK. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — Your full name ? A. — Hiram P. Harriman. 

Q. — You are a counsellor-at-law ? A. — Yes, sir. 

Q. —You reside where? A. —At Wellfleet, Mass. 

Q. —And practise in Barnstable County? A. —Y r es, sir. 

Q. — How long have you been there ? A. — A little over ten years. 

Q. — Do you know the handwriting in the answer filed in the case 
of the schooner “ Benjamin English ” ? A. —Y"es, sir. 

Mr. Burdett. We admit that to be Judge Day’s handwriting. 

Q. — Were you counsel in that case ? A. — I was not then admitted 
to the United States Court as an attorne}’, and I got 3^011 to attend to 
the case for me. The parties were my clients, — the plaintiffs were. 

Q. — Will } t ou be kind enough to state now what took place in the 
court before the trial commenced ? 

The Witness. Before the trial commenced, Mr. King read from 
the General Statutes of Massachusetts the section which prohibits a 
judge of probate from appearing as counsel for or against an execu¬ 
tor, administrator, or guardian. I do not remember the section of 
the statute, but it is the statute that has been referred to. He 
objected, after reading that statute, to Judge Day’s appearing as 
counsel for Eleazer Nickerson in that proceeding. Judge Lowell 
said, as nearly as I can recollect, — I can oiil} T give the substance, of 
course, — he said he was not aware that this was a question for him 
to pass upon here. “There is,” he said, “a statute of the United 
States which prohibits a judge from practising in a State court; yet, 
if I should go into a State court to tiy a case, I do not think the 
court could stop me. I should render myself liable to be impeached, 
and perhaps turned out of office. So, if Judge Day sees lit to put 
himself in this position, he must take the risk. I think that is all 
that is necessary for me to say.” We then went on with the case, 
and Judge Day appeared as counsel for Eleazer Nickerson. 


1882.] 


SENATE —No. 150. 


229 


Cross-Examination by Mr. Burdett. 

Q •—Where were the parties to this suit? A. — Mr. Chase is 
from Harwich, and Mr. Eieazer Nickerson is from South Dennis, an 
adjoining town. 

Q • — Both places on the Cape? A. — Both places in Barnstable 
Count}’. 

Q • — Mow far from Boston? A .—Not a great ways from eighty 
miles. 

Q . — Were there any other counsel in court at that time for the 
vessel or claimant than Judge Day? A .—I do not recollect that 
there were. I do not think there were. 

Q. — Had an appointment been made for an hearing? A. —I pre¬ 
sume it had been agreed upon on that day. It is usual in those 
cases. 

Q. —The hearing went forward? A. —The hearing went forward. 

Q. — What was the result? A. — The result was judgment for the 
amount of the libellant’s claim. 

Q .—Have you any knowledge of the fact that Mr. Thacher’s 
resignation was in Judge Day’s hands for any length of time? and, if 
so, of the reasons why it was in his hands? A. —Yes, sir. 

Q. — Will you state what you know of that matter? A. —The 
reason it was placed in his hands was on account of this habit of Mr. 
Thacher of getting intoxicated at times, and the proposition was 
raised among Mr. Thacher’s friends as to something being done to 
prevent this thing in the future. He was threatened that they would 
not stand this thing, to have it repeated, and he was ready to do any 
thing ; and it was proposed by somebody that he write out his resig¬ 
nation to be placed in the hands of some person. I think the resig¬ 
nation was placed in my hands. I preferred not to have it; and it 
was placed ultimately in the hands of Judge Day, and it was retained 
by him for a long time. I had no knowledge that it had been sur¬ 
rendered until I heard of it here to-day. 

Q - (By Mr. Gooch.)— You are one of Mr. Thacher’s friends? 
A. — Y r es, sir. 

Q. — And aided and assisted in bringing about this state of things? 
A. —x was interested in doing something to prevent him from yield¬ 
ing to, or indulging in, this bad habit. I thought we might as well. 

Q. — Did you suppose that you or Judge Day were doing any thing 
that would be charged against you as a matter of corruption? A. — 
No, sir. 

Q. — Was not your sole object to try to save a man who had this 
unfortunate habit? A. —Yes, sir. 

Q. (By Mr. Burdett.) —One question in regard to this case of 


230 


HEARING —JOSEPH M. DAY. [March, 


the schooner “ Benjamin English.” Do you know whether the decree 
was interlocutory or final? A .— I know that, from the decree, the 
libellant received the money 7 . It is a matter which took place seven 
or eight years ago. I know that the decree was entered, and that we 
received the money 7 in due time. 

Q .—The matter was settled between the parties? A .—It was 
settled by our receiving just what we claimed. I suppose it was dis¬ 
missed after we got the money*. 


CADWALLADER CURRY. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. —Do you hold office in this Commonwealth? A. — Y r es, sir: 
I am one of the commissioners of saving banks. 

Q. —And is there some office connected with it by* law in reference 
to the examination of county* accounts? A. — We were made by 
the Legislature examiners of certain county* accounts, clerks of courts, 
sheriffs and jailers, registers of probate, commissioners of insolvency, 
and some other offices. 

Q. — In pursuance of your duty 7 as examiner of accounts, did y*ou 
go down to Barnstable for the purpose of examining the accounts in 
the probate office there? A. — Y r es, sir. 

Q. —Did you have an interview with Mr. Thacher, the register, 
on that subject? A. —I did. 

Q. — Now, will you state the conversation between y*ourself 
and Mr. Thacher? A. —Well, sir, we had a long interview: 
it was more than an hour. I visited the place because com¬ 
plaint had been made to me that he was taking fees that were 
not proper. In our interview I asked him in regard to the fees, and 
he admitted that he took them. Then I called his attention to the 
Acts and sections of them ; and finally*, I called his attention to the 
Act of 1879, — I think it is chap. 292, sect. 1,—and asked him 
how he felt he could take the fees in accordance with that Act. Well, 
he said, when the Act was passed, he had some little doubt about it. 
“ But,” said he, I took legal advice, and concluded I had a right.” 
I asked him whose advice he took, and he said he took the advice of 
Judge Day; that he conferred—I wish to state the language ex¬ 
actly* as it was at that point: I think the statement was that he 
conferred — with Judge Day, and the judge informed him he didn’t 
think this Act interfered with those specific charges he was making, 
and he would have a right to take them. I think that is the lanoriao-e 
as near as I can state it. He furthermore said he had talked with 


1882.] 


SENATE —No. 150. 


281 


Mr. Harrimavi about it; but lie didn’t state distinctly what Mr. Har- 
rirnan said to him, but he stated that in regard to the conference with 
Judge Day. 


CYRUS CAHOON. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. —Where do you reside? A. —Harwich, Barnstable County. 

Q. —Were you guardian for Ada Stevens? A. —No, sir. 

Q .—You had some connection with the settlement of the Marsli- 
pee lands, didn’t you? A. — Yes, sir. 

Q. — Did you have airy knowledge of a case in which Morse & 
Holmes were concerned at Marshpee in relation to some land there, 
where they had an interest? A. —l^es, sir. 

Q. — What year was that? A. — 1878, If I remember right. 

Q. — What was that matter, briefly stated ? A. — The matter you 
have reference to was probably in relation to this Ada Stevens prop¬ 
erty ? 

Q. —Y"es, sir. A. — I will state it to the best of m 3 ’ knowl¬ 
edge, although I did not expect it would come up again. Holmes 
& Morse bought some propert 3 T of one said to be the guardian of 
Ada Stevens. The guardian, whoever it was, — Blish, I think,— 
had sold the property; and, in selling of it, he sold more than 
his license called for. Consequently, it was understood at the 
time that the sale was not legal, and that Morse & Holmes’s title 
was not good. Afterwards they took measures to make that title 
good. 

Mr. Burdett. Allow me to ask what the specification is in rela¬ 
tion to this, — under what general charge does it come? 

Mr. King. This is the payment, by a guardian to the judge, of 
mone 3 T for services rendered by the judge. 

Q. (By Mr. King.) —And proceedings were had to make the title 
good? A. —Yes, sir. The}’ took proper measures to make the title 
good. I was employed to investigate that matter and get a good 
title to it. 

Q. —Was there advice taken by the guardian, to your knowledge, 
of the judge, and any payment to him? 

Mr. Buiidett. Let us see what kind of knowledge he has. 

Witness. The guardian — 

Mr. Burdett. Only of your own knowledge. 

Witness. The guardian, who is now present, says to me — 

Mr. Burdett. Let him testify to that. 

The Chairman. Nothing that he said in the absence of Judge 
Day is competent to be given. 


232 


HEARING — JOSEPH M. DAY. [March, 

Witness. I don’t know what took place between the guardian and 
Judge Day. 

Mr. Burdett. That is what I thought. 

Q. (By Mr. King.) —Who was the guardian? A. — Samuel 
Snow. He was the guardian at the time. 

Q. — Did he have some arrangement with the judge that you know 
of? A. —I do not know that he had, only what he said. 

Q. — You mean Samuel Snow, the senator, do you? A. —Yes, 
sir. 

SAMUEL SNOW. Sworn. 

[Testimony taken in 18S1.] 

Direct Examination by Mr. King. 

Q. —You are the present senator from the Cape district? A. — I 
am. 

Q. — Are you guardian for Ada Stevens? A. — I am at present. 

Q .—How long have you been so? A. —I have been so five or 
six years, — five years, I think. 

Q. — Have you any knowledge of this matter of the Marshpee 
lands? A. — If I may be allowed to state it in my own way, as I 
have it in m 3 ’ recollection. 

The Chairman. Every thing that relates to Judge Da}’. 

Witness. I conferred with Judge Day, at the request of Mr. 
Cahoon, in relation to a piece of property which was sold by the for¬ 
mer guardian of Ada Stevens. As I understand from Mr. Cahoon, 
who was employed by Morse & Holmes, who purchased the property, 
the title was defective, and he wished me to see Judge Da}’ and see 
how the title could be made good, — in what way it could be made 
good ; or to confer with Judge Day in regard to the matter, the } 7 
wishing to obtain a good title. I conferred with Judge Day, the 
judge of probate. I was at that time guardian, and went to him as 
guardian for advice in what I wished to do, and w’hat could be done 
in this case, and stated that fact, that the former guardian, Asa 
Blish, as I understood it, was licensed to sell so much real estate for 
maintenance, but proceeded to sell more than the license allowed. 
It was cranberry land. Messrs. Morse & Holmes of Boston bought 
it, and went on it, and improved it to the extent of two or three thou¬ 
sand dollars. They then found the title was invalid, and they wanted 
to see about the title. The first information I had was a letter from 
Mr. Cahoon. I went to Marshfield and saw Mr. Cahpon ; and he 
took me over the property, and gave me the facts as he had them, 
and stated, on my inquiries — 

Mr. Burdett. I object. 

The Chairman. Conversation is not competent evidence. 


1882.] 


SENATE — No. 150. 


233 


Witness. Mr. Day advised me I could proceed to advertise and 
sell again, subject to the improvement. I stated to him that they 
proposed to bid but a nominal sum, and of course were willing to 
bear the expense I should be at in the sale. Mr. Day says to me, 
“ In that expense I wish to be put in for me the sum of ten or fifteen 
dollars,” — fifteen I think. I can swear it was either ten or fifteen : 
fifteen I am very confident it was. I wrote Mr. Calioon what Judge 
Day had told me, and stated to him I would proceed to sell, and that 
the expense would be for advertising, and — 

Mr. Burdett. Not what he wrote to Mr, Cahoon. 

The Chairman. Perhaps that letter is not competent. If they 
object to it, you need not give that. Tell what you did. 

Witness. I proceeded to sell, subject to the improvements. The 
property was bid off by r Messrs. Morse & Holmes for one dollar. Mr. 
Cahoon prepared the deeds by request. I met him at Barnstable : he 
gave me the deeds to sign. Before signing them I handed them to 
Judge Day to see if they were proper deeds to sign, and he said they 
were. Mr. Cahoon gave me twenty-five dollars for the expenses of 
the sale ; and I paid Mr. Day either ten or fifteen dollars, which was 
his part of the bill. 

Q. (By Mr. King.) —Now, that ten or fifteen dollars was paid 
for what? A. — For advice which I received from Judge Da} 7 ", given 
to me as guardian. The money I paid Judge Day^ never was charged 
to the estate of Ada Stevens. I credited the estate simply with one 
dollar. I made no charges for the advertisement, and credited the 
estate with one dollar. The money I paid the judge was paid to me 
by Morse & Holmes, who paid the bill after the selling of the estate. 

Q. —Now state a little more in detail, if you can, what advice you 
received from Judge Day* about the selling of this property, subject 
to the improvement. A. — Before the sale I went to Barnstable, and 
asked Judge Day how I should state it at the auction. I have at 
home a memorandum of the words I took down, that this property 
was to be sold subject to the improvements by Morse & Holmes. At 
the auction I stated it was sold subject to the improvements of Morse 
& Holmes. Before Mr. Cahoon proceeded to sell, he stated, in my 
hearing, that it was sold subject to the improvement of Morse & 
Holmes. 

Q. — Now state what those improvements were. A. — One of the 
parties — and I never saw either of them before I was there at the 
sa l e — had their books there going to show that the improvements 
were over two thousand dollars, and they^ claimed that there was some 
eight hundred dollars interest money. I stated to the parties there 
that I didn’t know whether interest money was a legal improvement 
or not. I didn’t know what the improvements were ; but I wms in- 


234 


HEARING —JOSEPH M. DAY. [March, 


structecl b) T the judge of probate that the property was to be sold 
subject to the improvements. 

Q .—Were those improvements upon the surface? A .—They 
were on the surface of the bog, — taking the wild bog and making a 
cranberry bog, and making it in good condition: that was the 
improvement. 


Cross-Examination by Mr. Talbot. 

Q. — You testified to two sales. When was the first sale? A. — 
It was by the previous guardian. 

Q. — How long have you been guardian? A. — I have been guar¬ 
dian five years. The second sale was made in the spring of 1878 ; 

# 

and I think I had been guardian about a year. 

Q. — Then, the first sale was made in 1873 ? A. — I could not say. 

Q. — Was it as early as ’76 ? A. — I could not sa}’. 

Q. — What was the value of this land as originally sold? A .— 
As I have been informed, it sold for three hundred dollars. I have 
made particular inquiries into it, and found it sold for more than it 
was worth. There was great excitement about it at the time, and 
property sold for more than it was worth. I took special pains to 
get a crowd of people there at the time to bid upon the property. 

Q. — Which sale do you speak of ? A. — The last sale. I don’t 
know any thing about the first sale. 

Q. —You took particular pains to get a crowd of purchasers to the 
sale you made? A. —Yes, sir. I called upon a large number of 
cranberry-growers, and asked them to attend. They said it was a 
matter of form ; and I said, No, it was going to the highest bidder. 

Q. — And what was the highest bid? A. —One dollar. No one 
else bid. They paid me twenty-five dollars. 

Q. —Did you or not say to Judge Da}’, when }’ou conferred with 
him, that you had no interest in this matter as guardian? A. —No 
interest as guardian? I went to him as guardian, and stated to 
him — 

Q. — Didn’t }’ou sa} T so? A. — That I wasn’t guardian? 

Q. — No : that you had no interest in this sale as guardian ? A. — 
IIow could I say it? 

Q. —That is not the question, whether you could say it. I think 
3 'ou could say it if you chose to. The question is, whether you did 
or not. A .—It cannot be possible that I did: it is three or four 
years ago. I cannot see how I could say it, if I should saj^ it. I 
did go to him, because m} T attention had been called to it as guar¬ 
dian. I stated there was no title to that property; and I went to 
him to know as guardian what I should do. I was requested to go 
to him. I don’t know whether I have a right to say it or not. 


1882.] SENATE —No. 150. 235 

Q m At whose request? A. —Mr. Cahoon’s, acting for Morse & 
Holmes. 

Q. For whose interest did you call upon Judge Day? A .— 
Solely for the interest of my ward. 

Q • What interest had she? A. — I suppose her interest was in 
that land, and whatever property she had. I went to find out what 
she had. 

Q- Did Mr. Cahoon communicate with 3 ’ou in the interest of 
your ward? A. —He did—he wrote me— [To the Chairman.] 
Can I answer that question? You ruled it out just now. 

The Chairman. If they don’t object. 

Witness. Mr. Cahoon wrote me, asking me as guardian of Ada 
Stevens, saying nothing about what was to be told me when I got 
there, and what I was to be informed, that he thought it would be 
for my interest, as the guardian of Ada Stevens, to make a visit to 
Marshpee, and I would know when I got there. 

Q • —You were the guardian of Miss Ada Stevens? A. — I was. 

Q • —You were the lawful watcher of her interests? A. —I so un¬ 
derstood it. 

Q.—And not of Mr. Cahoon’s? A. —Not of Mr. Cahoon’s. 

Q. —Now, in whose interest did Mr. Cahoon approach you in rela¬ 
tion to the matters of Ada Stevens? A. —After I arrived in Marsh¬ 
pee— 

Q. — Stop one minute, until you answer that question. A. —In 
the interest of Morse & Holmes. When I w r ent to Marshpee I didn’t 
know whose interest it was, and when I got there I found — 

Q. — Wait one minute. From whom did this twenty-five dollars 
some? A. —From Morse & Holmes. 

Q. —Was it ever a part of the estate of Ada Stevens? A. —No, 
sir: it was never a part of that estate. I told you so particularly. 
It never was charged, and never was paid by the estate. 

Q. —Wasn’t it understood at the time bj’ you that this twenty-five 
dollars was to come out of Morse & Holmes towards an amicable ad¬ 
justment of this title? A. —No, sir. 

Q. —What was understood? A. — Morse & Holmes wanted I 
should proceeed to advertise and sell this property again, that they 
might obtain a title. 

Q. (By Mr. Burdett.) —We want you to answer the question. 
A. — I will answer it, if you will ask it again. 

Mr. Talbot. That is all. 

Re-direct by Mr. King. 

Q .—Let me ask you one question, to make it definite. You say 
Judge Day examined the deed you executed finally? A. — I handed 





236 


HEARING —JOSEPH M. DAY. [March, 


the deed to Judge Day, and he looked over it, and said it was all right. 
I consulted Judge Daj r two or three times about this matter. The 
first advertisement I put in the paper was wrong. I consulted him 
to know whether it was necessary to start de novo , or if I could cor¬ 
rect it. He advised me that I should start anew. In fact, I took 
Judge Day’s advice in every step I took. 

Q. —And finally as to the deed which you executed as guardian? 
A. —I had to sign the deed as guardian, and handed it to Judge Day 
in his office ; and he told me there was nothing in it I could not sign. 
I also consulted him for parties who had a deed given b} T Ada Stevens 
when she was a minor, and they claimed they had no right to sell it; 
and I conferred with Judge Day in regard to that. 


DAVID K. AIKEST. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. —Where do you live? A. — Yarmouth. 

Q. — What is your age ? A. — Eighty-two last January. 

Q. — Are you now president of the Yarmouth Bank? A. —No, I 
am not. 

Q. — You have been ? A. — I have been. 

Q . — Up to what time, sir? A. — Well, I don’t recollect. A 
year and a half ago, or something like that. 

Q .—AVere 3 'ou at one time administrator of the estate of Jona¬ 
than Kelly ? A. — No, I never was. His widow was administrator 
of the estate, — executrix put in by the will. 

Q. —Jonathan Kelly died where? A. —At Yarmouth. 

Q .—And his will was proved in the county of Barnstable? A. 
— It was proved in the Barnstable court. 

Q .—Well, sir, did you have something to do with arranging his 
estate? A. —It was a peculiar kind of a will. In his will he pro¬ 
vided that there should be moral and responsible persons appointed 
by his widow and the judge, with the sanction of the court — 

Mr. Gooch. We had better have the documents. 

Q. — Did you go to the probate office to do some business with 
reference to the estate of Jonathan Kelly? A. —I did business for 
the widow mostly. 

Q. — She was the executrix? A. — Yes, sir. 

Q. — Now state briefly, Mr. Aikin, if you had any business with 
the judge, representing the widow ; state what it was, if you took 
any advice, or any thing of that kind. A. —After the widow died, 
I felt a little anxiety to know how the property would go under the 
will after her death, and I asked the judge his opinion ; and, after a 
consideration, he wrote me a line. 


1882.] 


SENATE —No. 150. 


237 


Q. — Is this the letter he wrote you, sir? [Handing witness a 
paper.] A. —Yes, sir: that is the letter. He wrote me he had — 
Mr. Burdett. Wait a moment, until we see what it is. 

Counsel examined the paper, after which Mr. King read as fol¬ 
lows : — 


Barnstable, March 15,1876. 

David K. Aikin, Esq. 

Dear Sir, — Upon examination of the authorities in connection with the 
provisions of the will of Jonathan Kelly, I am of the opinion that the rights of 
the several parties in interest are as follows: Elizabeth, widow of Jonathan, 
took an absolute fee in all the estate, real and personal, of Jonathan Kelly. 
Of course, then, she was entitled to the income of her own property. It also 
follows that the whole estate, including all accumulations, is now the property 
of the only daughter of Elizabeth Kelly. The children of Susannah take noth¬ 
ing under the will of Jonathan Kelly. 


Your obedient servant, 


J. M. DAY. 


Q. (By Mr. King.) —Now, Mr. Aikin, did you pay the judge of 
probate for that letter ? 

Mr. Burdett. “Did you pa}' Joseph M. Day?” the question 
ought to be. It is not a letter of the judge of probate. 

Witness. I paid it to Judge Day. 

Q. (By Mr. King.) —You paid Judge Day how much? A. —Ten 
dollars. 

Q. — And you charged it where? A. —To the estate. Still, I was 
not administrator at the time. 

Q. — Were you subsequently appointed? A. — I was afterwards. 

Q. — Did you make up an account? A. — I carried it in my ac¬ 
count. 

Q .—Did your account mention that charge? A. —It mentioned 
that charge. 

Q .—How did the account mention this payment? A. —Paid J. 
M. Day for services and advice, ten dollars. 

Q. — Was there any thing said by him on the presentation of that 
account? A. —I think he told me he should rather not have it en¬ 
tered in his name: it was an outside matter. He told me he had 
taken considerable pains. That was his opinion, and I questioned 
it a little as to the propriety of the decision; and he informed me he 
had taken considerable pains, and got other advice on it: and I 
thought, as I was not administrator, it might be a proper charge ; 
still, I don’t know how that was. 

Q. — You say he found fault with you for having his name in the 
account? A. —He objected. 

Q. —Then what was done? A. —Well, I think it was erased out, 
and charged so much for advice. 


238 


HEARING —JOSEPH M. DAY. [March, 


Q. —And left so much for advice. Where was that done? In the 
probate court? A. — It was the time when I carried in my account. 
It was not done until after I received that letter. I was appointed 
administrator to close up the account of Elizabeth Kelly’s account 
with the estate of Jonathan Kell}’. Afterwards I was appointed 
administrator of the estate of Elizabeth Kelly. 

Q. — And the account was finally proved and allowed after Judge 
Day’s name was struck out, and it appeared merely for advice? A. 
— Yes, sir. 

Q. — This was in the account that you rendered for Elizabeth 
Kelly, being her administrator upon the estate of her husband ? A. — 
In closing up her estate, and I suppose it was on that account. 

Q. — And you were then administrator of whom? A. —I was 
appointed administrator to close her account. She died, and left her 
account unsettled at the probate office. 

The Chairman. Was it administrator de bonis non , or her admin¬ 
istrator ? 

Mr. Gooch. He was the administrator of the administratrix. 

. Mr. Talbot. He was in a private capacity at the time? 

The Chairman. Except as he acted for the executrix at the time. 

Mr. Talbot. The executrix was dead at the time. We will bring 
that out on a cross-examination. 

Q. (By Mr. King.) —Do you remember whether there were, at 
the time this letter was written, minor children of Jonathan Kelly 
living? A. — Susannah Kelly, the daughter of Jonathan Kelly, had 
children. I don’t know what their ages were. They were something 
near of age, I think ; perhaps not all of them. There may be one or 
two under age. 

Cross-Examination by Mr. Talbot. 

Q .—At the time you consulted Judge Day, and at the time you 
received this letter, was Mrs. Elizabeth Kelly living or dead? A. — 
She was dead. 

Q. — And had you at that time been appointed her administrator? 
A. — I had not at the time of this letter. 

Q .—You were acting simply in a private capacity? A. — I con¬ 
sulted Judge Day and received that letter the loth of March, and 
I was appointed administrator on the 18th of April. 

Q. — As near as you can state, when was this will, which you sub¬ 
mitted to Judge Da}’ for instruction, approved in the probate court 
at Barnstable? A. —It was something like fifteen years before. 

Q .—Do you recollect who was judge of probate at the time that 
will was proved? A .—Judge Marston might have been: I don’t 
know. 




1882.] 


SENATE —No. 150. 


289 


Witness produced the will of Jonathan Kelly, with the order of 
notice appointing Elizabeth Kelley executrix, issued by Judge Mars- 
ton March 9, 1858 ; and Mr. Talbot said the will must have been 
proved before that date. , 

Q. — You were appointed in April, 1876? A. —Yes, sir. 

Q. —And the date of the letter to Judge Da}* is March 15, 1876? 
A. —Yes, sir. 

The Chairman. I understand this letter of inquiry to have been 
in regard to the rights, under this will, of the heirs of Mrs. Kell}*, 
w r ho had recently deceased ? 

Mr. Talbot. The witness can tell. 

Witness. The grandchildren. He had but one child, and she 
had four children. In his will he had provided for a distribution 
to his daughter and her children after he had given it away to his 
widow. 

Q. (By the Chairman.) —How long had Mrs. Kelly been dead 
at the time of this letter? A. — She had been dead but a short time. 
After she died, the}’ wanted to know whose the property was. 

Q. (By Mr. Burdett.) —You went to Judge Day as a friend of 
the family, — you were a friend of theirs? A. — I thought he would 
know and would tell them. 

Q. — Have you done more or less business in Judge Day’s court? 
A. —Not but very little. 

Q. — How much? A. —I don’t know since he has been ap¬ 
pointed that I have had any other case. 

Q. — Any other than this? A. — It don’t occur to me. 

Q. (By the Chairman.) —Did these grandchildren, about whose 
rights you inquired, live in Barnstable County at the time? A. —• 
Always lived there. 

Q. (By Mr. Burdett.) —Now tell us your treatment by Judge 
Day when you went to his court in relation to any probate business, 
so far as you have had probate business there. A. — He always 
treated me very kindly. 

Q. — Did you ever see him treat anybody else any way except 
kindly? A. — I have never seen it, sir. 

Q. — Now, when your account as administrator was presented to 
him with his name in the account, did not he tell you it was not 
proper for his name to appear in an account of that kind as a legal 
adviser? A. — He should rather not have it there: I don’t know. I 
suppose that was implied. 

Q. — No, just what he said, no matter what it implied. He said 
rather not have it there, — that is your recollection of it? And didn’t 
he tell you that to save trouble — I misapprehended: I thought 
there w T as a question asked. That is all. 


240 


HEARING —JOSEPH M. DAY. 


[March, 


Re-direct by Mr. King. 

Q .—Since 3*011 are inquired of about this, let me ask }*ou what 
Judge Day’s manner is to parties doing business in his court? A. — 
I don’t know any thing amiss personally. 

Q. — Don’t you know by any other means what his general manner 
is? 

Mr. Burdett. Now stop. This has gone far enough. 

Chairman. The question is, Do you know of }*our own knowl¬ 
edge? 

Mr. Burdett. The witness has already testified that Judge Day 
treated him and eveiybody else with courtesy, and that covers the 
ground. Does the counsel desire this witness to testify to any thing 
he has heard ? 

Mr. Boutwell. No, sir. 

Mr. Burdett. Then the question is not competent. 

Q. (By Mr. King.) —Before Mrs. Kelly died, whether you were 
in the habit of doing her business for her in the probate court? A. — 
I did all she had to do. . 

Q. — And do I understand you — A. — There wasn’t much to do. 
She didn’t render any account until after her decease. 

Q. —I understand you were not frequently in the probate court? 
A. —Not very frequenth*. 

The will was put into the case by Mr. King. 

JOSEPH CUMMINGS. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. —How old are 3 * 011 , Mr. Cummings? A. —I am a little over 
sevent 3 7 -six. 

Q. —And 3*011 live in Orleans? A. —Yes, sir. 

Q. — That is how far from here? A. — It is eight } 7 or ninety 
miles, I think. I don’t know justl}*. I have known, but I don’t 
recollect. 

Mr. King. Now I want to say to the Committee that I don’t wish 
to be guilty of any infraction of their rules, but Mr. Cummings was 
summoned here before the order of the Committee was made in refer¬ 
ence to the specifications. He has come this long distance for the 
purpose of testifying under the charges, concerning which testimon)* 
lias been given, and facts which occurred some twenty years ago. It 
is merely a question whether the Committee, with reference to this 
special case of this old gentleman coming so far, will suspend the 
rule, or make him go home and come back again. 


1882.] 


SENATE —No. 150. 


241 


Mr. Burdett. What is the testimony? 

Mr. King. Concerning advice to an executor. 

The Chairman. Do the counsel for the respondent object to re¬ 
ceiving the testimony at this time under the circumstances, and to 
suspending the rule? 

Mr. Burdett. We will hear what the testimony is. 

Counsel held a brief consultation. 

Mr. Burdett. We shall make no objection to the admissibility 
of this testimon}’ at this time, but may have to recall the witness for 
the purpose of cross-examination. It is a matter that happened 
twenty years ago ; and of course upon an instant’s notice it is very 
difficult for the respondent to call to mind whether or not an ex¬ 
planation can be made. 

The Chairman. You can have the opportunity. 

Q. (By Mr. King.) —What was your father’s name? A. — Dan¬ 
iel Cummings. 

Q. — Did he die in Orleans ? A. — Yes, sir. 

Q. —And you were executor of his will? A. —I was joint execu¬ 
tor with my brother George. 

Q. — Of your father’s will? A. — Yes, sir. 

Q. — Now will you state if you had any advice from Judge Day in 
yonr capacity as executor? and, if so, what? 

Mr. Gooch. Better let him state what happened. 

Witness. There was a clause in my father’s will which caused a 
dispute between the heirs. We did not construe it alike. My broth¬ 
er-in-law had one idea, and some of us had another idea. It was re¬ 
specting a clause in my father’s will. I asked him his opinion. M 3 ’ 
brother-in-law said lie would agree to whatever the judge decided was 
right. 

Q .—You were then executor, and did not apply to him for an 
opinion? A. —I asked Judge Day for his opinion on this clause in 
the will. 

Q. — Did he give you an opinion? A. — Yes, sir. 

Q .—Was there any thing paid for it? A. — Five dollars he 
charged me. He sent a bill of five dollars, and I paid it. My brother 
and I paid it out of our own pockets. We concluded it was best to' 
pa 3 7 it, and say nothing more about it. 

Q. —Have 3 ’ou the bill here? A. —Yes, sir. 

Q. — Mr. Day was then judge of probate, was he? A. —Yes, sir. 

Witness produced the bill, and Mr. King offered it in evidence : — 


Dec. 4, 1858. 

Joseph and Calvin Cummings to J. M. Day, Dr. For legal advice to date, 
five dollars. Received payment, J. M. DAY. 


242 


HEARING —JOSEPH M. DAY. [March, 


Cross-Examination by Mr. Burdett. 

Q. —When did your father die, Mr. Cummings? A. — I don’t 
know as I can tell you the date, but about a year before this took 
place. 

Q. — Was the will proved before Judge Day or before Judge Mars- 
ton? A. — Before Judge Da} 7 . I think I had nothing to do with 
Judge Marston about it. That is my recollection. I would state 
that Mr. Marston was clerk at the time. 

Q. — Have you got a copy of the will here? A. —Yes, sir. 

Q. — And your appointment as executor? A. —No, sir, I haven’t 
my appointment. 

Witness handed the will to Mr. Burdett. 

Q. —That is your appointment? A. — I suppose so, sir. 

Mr. Burdett. The will is dated 27th of October, 1855. The 
codicil is dated tenth day of November, 1857. The copy is attested 
by J. M. Day, register. The will was proved and probated by 
George Marston, judge of probate, the twelfth day of January, 1858. 
The executors were appointed the twelfth day of January, 1858. I 
suppose this will go in as evidence from the fact that I have read it 
from the will. 

Mr. King. I presume so. 

Mr. Burdett. Then it is considered evidence. 

Q . (By Mr. Burdett.)— Was any charge ever made in the ac¬ 
counts which you rendered for this money? A. — I think not. 

Q. —You paid it out as private individuals? A. — My brother 
and myself paid it ourselves. 

Q. — Do you know whether or not you rendered any accounts in 
that estate after you got Judge Day’s advice? A. — I won’t be cer¬ 
tain whether we rendered an account or not. The heirs were all of 
age, and we took their receipts. 

Q. —Isn’t it your best recollection that the whole matter was 
settled up between the heirs without further resort in any way to the 
judge of probate? A. — I think we never rendered any account to 
them. I won’t be certain about it, but that is my impression. 


GEORGE MARSTON. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. —Your name is George Marston? and you are attorney-general 
of the Commonwealth? A. —I am, sir. 

Q . —Are you a native of Barnstable County? A. —Yes, sir. 

Q. — And have resided there how long? A. - I resided there up 
to 1869. 


1882.] 


SENATE —No. 150. 


248 


Q‘ — Have you had any special connection with the probate office 
in Barnstable Count}- ? and will }T>u state to the Committee what it 
was? A. — I was register of probate from the spring of 1853 until 
December, 1854, and then judge until the first day of July, 1858. 

Q. (By Mr. King.) —Will you state the fees as they existed at 
the time }’ou were register of that court with reference to the charge 
of the register paid in on account of parties who received papers 
from the court? A. —There never was, to my knowledge, any 
charge for fees of any kind. At the time when prepayment of post¬ 
age became compulsory, some question was raised of the necessity 
then of the postage on papers sent out from the probate office being 
paid by somebod} r . Whether I was judge or register I do not know : 
but I had an interview with the county commissioners, at which I 
asked them to pay for that postage and charge it to the county; but 
they objected. And thereupon people who did business in the court, 
who desired to have their papers forwarded by mail, were asked to 
leave twenty-five cents to cover the postage account, the rate of 
postage then being five cents. I know of no other charge of any 
sort while I was in the probate office in that capacity. 

Q. —There was no charge then for papers of that kind? A .—I 
never heard of any such thing until I read something of that kind in 
Mr. Thacker’s testimony or reported testimony. Mr. Thacker did 
not live in Barnstable when I was in the probate office, and cannot 
know any thing about it, except what he has been told by somebody. 

Q . (By Mr. Burdett.) — Or seen by the record, — I suppose you 
will add that? A. —No, sir, I won’t add that: there is no such 
record there. 

Q. (By Mr. King.) —Now let me ask you if you have knowledge 
of the case in which Emily Harrison was the plaintiff, and Noble P. 
Swift defendant, in the Superior Court, and also of a case in the in¬ 
solvency court where Swift was an insolvent debtor? If you have 
general knowledge of those two cases, will you state what you know 
of them to the Committee? 

Q. — Mr. Marston, do you know any thing bearing upon that trans¬ 
action? A. —I know he was counsel in the suit of Harrison v. Swift 
from the beginning to the end; and I have cognizance of the insol¬ 
vency proceedings. I know that in that suit we had an ample attach¬ 
ment of real estate against a man whose standing was as good as any 
man’s, and about whose ability to respond there never was a question. 
The case was tried : there was a verdict for the plaintiff. It went to 
the Supreme Court on exceptions : they were overruled, and it came 
back to the Superior Court for judgment and execution. A very few 
days before the court sat in which we could get our judgment and 
execution, we were greatly surprised at knowledge of insolvency pro- 


244 


HEARING —JOSEPH M. DAY. [March, 


ceeclings by Noble P. Swift; and these insolvency proceedings were 
before Judge Day in the county of Barnstable. The papers I have 
not seen since that time. The schedule showed debts in round sums, 
round thousands or hundreds, due to Swift’s relatives. 

Q. (By Mr. King.) —Do you know whether Swift had any counsel 
in the court of insolvenc} 7 ? A. — I never was aware that he had any. 
I was present when, in behalf of the plaintiff in the suit of Emily 
Harrison v. Noble B. Swift, a protest w'as filed against Judge Day’s 
proceeding with the case. We desired to have the case before a 
judge who could have no possible connection with either party; but 
it went on before Judge Da}^. 

Q. (By the Chairman.) — How much was your judgment? A. — 
The verdict for damages was fifteen hundred dollars. There were 
costs,—perhaps a hundred or a hundred and fifty dollars more; I 
cannot recollect. 

Q. (By Mr. King.) —Now, Mr. Marston, will } r ou state in refer¬ 
ence to the conduct of matters in that case of Noble Swift in insol- 
venc}^ ? 

Q. —Let me ask you what 3 ’ou observed in the probate court with 
reference to the proof and allowance of claims as they were brought 
to the attention of the judge? 

Witness. The judge was sitting as judge for the allowance of 
claims. The only thing called to his attention, in that connection, 
was the nature of the claims. We were there representing one of 
the creditors to object to some claims presented. We did object to 
some, for the reasons which we explained. I did myself put together 
certain notes that were dated manj r months apart, and showed on the 
spot that the paper was torn apart, and the pieces matched together, 
as no man could make them, indicating, as we thought, that those 
notes were made at the same time. They were in the same hand¬ 
writing ; and for these reasons we objected. That is the only action 
of the judge I was concerned in. 

Q. — If there was one single claim presented there which was not 
allowed by the judge? A. —I have no recollection that any thing 
was disallowed. 

Q. — Whether or not the judge sat all the way through at all the 
meetings that were held? A. — I have no knowledge of any other 
judge coming in. I didn’t attend all the other meetings myself; but, 
so far as I know, he sa^Jn the case. 

Q. — Now, Mr. Marston, of course you have been familiar with 
the practice in the probate court in Barnstable for a great many 
years. I want to ask you with reference to the bearing of Judge Day 
towards the parties doing business in that court. A. —For the last 
twelve years about, I have scarcely been in the probate court. I 


1882.] 


SENATE — No. 150. 


245 


have been in a few times when I happened to have something that 
called me there, and before that I was in oftener. When 1 lived at 
Barnstable, matters called me into the probate court more frequently. 
I recall no special matters in that court. I can name no particular 
transaction. I do know there are times when I have known Judge 
Day to seem to me very harsh and severe in his manner towards 
humble people in that court, who were seeking to do their business 
without the aid of counsel, and who didn’t very well understand how 
it was to be done. 

Cross-Examination by Mr. Burdett. 

Q • — Mr. Marston, I desire to ask you if 3*011 were not judge of 
probate in 1858, at the time of the abolition of that court? A. — I 
was till the 1 st of July, 1858. 

Q • — Were 3*011 the judge at the time the court was abolished ? A. 

— I was judge till the time that the court ceased to exist, and went 
out with it. 

Q. —And the court of probate and insolvenc 3 7 took the place of the 
former probate court? A. — It did. 

Q. —And in the position of judge of probate and insol vency Joseph 
M. Day was appointed? A. — Yes, sir. 

Q. —You sa 3 r that for the last twelve years 3 *ou have been in the 
probate court infrequently? A. —Yes, sir, quite infrequently. 

Q. — How man 3 r times do 3 *ou think in all? A. —In that twelve 
3 T ears I may have had business there live times; and undoubtedly, 
when I have been at Barnstable on other business, I have been in 
occasionally. Not often, sir. 

Q. — Can 3 'ou recall the matters in which you have had business to 
do with the probate court in the last twelve 3 *ears ? A. — Some of 
them: 3 r es, sir. 

Q. — How many can 3 T ou recall? A. — I recall three now; but 
that is not all. 

Q. —You have not taken particular notice, I suppose, of the mat¬ 
ters about which Judge Da 3 r was abrupt to those who were suitors in 
his court? A. —I kept no account of them. I didn’t lay them up 
in my memor 3 r . 

Q. — You have no knowledge whether or not there existed any 
reason for such conduct on his part in any of these instances? A. —• 
In any thing I saw, there was no adequate reason. 

Q. —How are you able to state there was no adequate reason? A. 

— From memor 3 *, sir. 

Q. —And upon what do 3 *ou base your memory? A. — My mem¬ 
ory is based upon the facts at the time, sir. 

Q. —Will you state what those facts were in any instance? A. — 


246 


HEARING —JOSEPH M. DAY. [March, 


I told you I cannot say. I know this, that I never knew a suitor in 
the probate court to sa 3 r or do any thing that should offend the judge. 

Q. — And that is all you know about the matter of alleged rude¬ 
ness to suitors in his court, as I understand you? A. —Of my per¬ 
sonal knowledge, yes, sir. 

Q. —Now, in regard to juvenile offenders, — one by the name of 
Fish. Will you state whether or not 3^011 were present before Mr. 
Crocker, the trial-justice, at the time those bo 3 T s’ cases were called 
or disposed of? A. — I was present when the 3 T were disposed of: I 
cannot sa 3 ' I was present when the 3 r were called up. I was present 
during a considerable part of what took place there. 

Q .—And 3 t ou stated that Judge Da 3 r wouldn’t have any thing to 
do with them when they w r ere bound over to the probate court? A. 

— Yes, sir. 

Q. —Do 3 T ou remember his exact language on that occasion? A. 

— I think, sir, his exact language was this : in a veiy violent and 
angry tone, “ I won’t have any thing to do with them.” 

Q. —Didn’t he sa 3 ^ he could not have airy thing to do with them? 
A. — No, sir, he did not. 

Q. — Do you think your recollection is clear enough to state that? 
A. — I have stated it upon ray responsibilit 3 T . 

Q. — In regard to the twenty-five cents that } t ou sa 3 ^ it was the 
custom of the probate office to charge for postage, etc., let me ask if 
that wasn’t intended to cover all the postage in the particular case in 
which it was charged? A .—That was what was contemplated. 
Some of it overrun, and some would fall short. 

Q. —Do 3 ’ou know of any case where twent 3 ’-five cents did not 
cover the postage to the register? A. — I don’t recollect any case. 

Q. —The intention was that that should be ample? A. —There 
was no talk about ample. It was considered that twent 3 T -five cents 
was a fair average, and would not be burdensome to an 3 r bod 3 T , and 
would save the register from paying the postage out of his own 
pocket. 

Q. — Was it supposed that that would be the exact sum in any 
case? A. —No, sir. 

Q. — It was simply a sum large enough to cover all possible 
expense of postage? A. —It was considered to be a fair average 
sum, at the rates of postage. 

Q. — In regard to the case of Harrison v. Swift, how do 3 t ou know 
that Judge Day was counsel for Mr. Swift, as a matter of knowledge, 
actually from the beginning to the end of that case? A. — Well, 
sir, when a man is on a lawsuit and fighting it through, he generally 
knows who is on the other side ; and, especially if it is Judge Day, he 
is pretty likely to find it out. 


1882.] 


SENATE —No. 150. 


217 


Q.—Exactly ; and 3 ’ou found out in this case that Mr. Swift had 
council? A. —Yes, sir; for I tried it in the Superior Court, and it 
went up to the Supreme Court with exceptions. Of course I found it 

out. 

Q • — But I ask } T ou how you know, as a matter of fact, that Judge 
Day was counsel for Mr. Swift from beginning to the end of that 
case? A. —Because there was no other counsel, and his name 
remained on the docket from the beginning to the end. 

Q • — Are } t ou testifying to the fact, or are 3 T ou testifying upon the 
docket entry? A. —I am testifying upon the docket entry, and from 
the fact that no other counsel was communicated to us. 

Q. — Do 3 ’ou know of an 3 r step taken b 3 ’ Mr. Swift, through 
defendant’s counsel, after the rescript at the September term? A. — 
I don’t know of an 3 \ There was not much left for him to do after 
the verdict was rendered. 

Q. —The verdict was rendered as of the last September term, 
after sending down the rescript? A. — I don’t know: I have not 
seen the rescript. Undoubtedly it was so. 

Q. — Mr. Marston, could you not have taken out execution on 
3 ’our judgment in the case of Harrison v. Swift, as of the September 
term, 1866, immediately upon the sending down of the rescript, with¬ 
out waiting for the next term of court to come in? A. — If the re- 
script was as you stated, I have no occasion to doubt that we should 
have got an execution. 

Q. — Then, if that be true, that the rescript came down between 
terms, ordering judgment as of the last September term, 3 ’ou might 
have had execution before the time when 3 T ou applied for it? A. — 
Yes, sir. 

Q. — And, if 3 ’ou did not get execution, it was nobod 3 T ’s fault except 
the plaintiff’s? A. —It was nobody’s fault as I know of. We had 
a judgment against a good defendant at ari 3 T time, if he hadn’t jewed 
us out of it by fraud. 

Q .—That is your opinion? A. —Yes., sir. Of course I don’t 
include in that case anybody except Noble P. Swift and his creditors. 

Q .—Among whom Judge Da 3 ’ was not one? A. —I don’t 
know. 

Q. — Did his name appear as one of the creditors? A. —I didn’t 
see it there. 

Q. — Do 3 ’ou know of his ever passing upon any claim as his cred¬ 
itor? A. —I don’t know of any, sir. 

Q . —Did 3 ’ou ever appeal from am’ decision made in the decree in 
the case of Noble P. Swift in insolvency? A. — No, sir: our client 
never had a dollar in the world. 

Q. — Never mind, sir : 3 ’ou need not give the reason. A. — If the 
fact is stated, the reason should go with it. 


248 


HEARING - JOSEPH M. DAY. [March, 


Q. —Do you know a man by the name of F. W. Saw 3 r er in Bos¬ 
ton? A. —I do, sir. 

Q .—Do you know whether he was counsel in the case of Noble 
P. Swift in insolvency? A. — I have no knowledge of it. 

Q. (By Mr. Talbot.) — You testified to the fact of Judge Day 
being counsel in the case of Noble P. Swift, and meeting him as 
counsel? A. — Yes, sir. 

Q . — When did that case end? A. — It ended in the execution. 

Q .—Pardon me. You speak of meeting him, and from personal 
knowledge. Now, we want to know when your personal knowledge 
of meeting Judge Day as counsel in that case ended? A. — It is im¬ 
possible for me to say when I last saw him in that case. 

Q .—Did you have any personal knowledge of Judge Day in that 
case after the overruling of the exceptions? A. — I have no doubt 
we spoke of it after that. 

Q. —Did you meet him as counsel in that case after that? A. — 
There was nothing to do after that. 

BENJAMIN F. HUTCHINSON. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — Where do you reside ? A. — Provincetown. 

Q. — What is your business ? A. — Practise law some. 

Q. — How long ? A. — Twenty-one years. 

Q. — I want to ask } r ou now if 3^011 were counsel in a case in the 
probate court, which was a petition for partition, Young v. Young? 
A. — I was, sir. 

Q .—What were the names of the other parties? A. — Reuben 
and Enos R. Young. 

Q. — Did 3 r ou file a petition in that case as counsel? A. — I did, 
sir. 

Q. — And did you bring the case to the attention of the probate 
judge? A. — I did. 

Q. — Where ? A. — In Barnstable. 

Q. — How long ago was that? A. — It was either in the latter 
part of 1872 or the first of 1873 : I could not sa 3 T positively. 

Q. — State to the Committee what you did in court about that case, 
what transpired between you and the judge in relation to it. A. — 
The best of my recollection is, I took the petition up to court; and, 
when the case was called up, the judge remarked to me that there 
had been no notice. I told him I thought it appeared so from the 
return. I had the deputy sheriff’s return and certificate that he had 
served it. He took out a paper from his pocket, which proved to be 
a copy of the order of notice in the register’s handwriting; but it 


9 


1882.] 


SENATE —No. 150. 


249 


liad the signature of the deputy sheriff to it as being a true copy 
attached. I told him I thought, as no one appeared there for the 
respondents, that the officer’s return was conclusive, and he could not 
go back of it, and he must take it as it stood. Then he says there 
is a contention as to title; and I told him there was not airy conten¬ 
tion as to title, so far as I knew. He says there is, and I told him 
there wasn’t; and you haven’t got it right. I took the deeds out of 
my pocket, and presented them. And he said, “I don’t care about 
seeing them : I shall dismiss the case.” And he did dismiss it. 

Q • —And nobody appeared? A. —Nobod} r appeared. 

Q • —He said he would dismiss the case, and did dismiss it? A. 

•—Yes, sir. 

Q • — What occurred afterwards in relation to that same matter? 
A.—Afterwards we brought the petition in the Superior Court be¬ 
tween the same parties in the same case. We never came to any 
division. The Old Coloiry Railroad was laid out there, and they 
bonded all the property, and took it. 

Q. — State if any counsel appeared for the respondents in the 
Superior Court when you appeared there. A. — Judge Daj^ appeared 
for the respondent in the Superior Court. 

Q. — He acted as counsel for the respondents ? A. — He acted as 
counsel for the respondents. 

Q. —How long after the dismissal of the case in the probate court 
did it appear in the Superior Court? A. — It was dismissed in 
January or February, 1873, and w r as entered in April of the same 
3 ’ear, — entered immediately after. , 

Q. — Entered immediately after, and Judge Day appeared as 
counsel for the respondents? A. — Yes, sir. 

Cross-Examination by Mr. Gooch. 

Q. —Did you say that there was no contest as to the title of that 
propert}"? A. —No, sir : no title as to the land. There was a con¬ 
test about the houses which Mr. Reuben Young had built upon the 
land. There was a division about that. I don’t think there was any 
question between the judge and myself as to the legal point. 

. Q. —There was a contest as to the house on the property? A. —• 
Yes, sir: there was a contest as to the house on the propert}^; but 
the question hadn’t been raised at the time of the division, — at the 
time of the petition. At the time of the petition for partition, the 
question of title to the houses hadn’t been raised. 

Q. — But it was known that there was a case there where a ques¬ 
tion would come up? A. —Well, I will tell you the circumstances 
as near as I can understand them about the whole matter, if you will 
let me. 


250 


HEARING — JOSEPH M. DAY. [March, 


Q. —But wasn’t there something in relation to that house which 
might raise a question? A. — There was a contingency upon which 
it might be raised ; but they hadn’t raised it at the time of filing the 
petition. 

Q. — Now, sir, suppose such a question does arise, what would be 
the result of the probate proceedings? A. —My idea is, if you want 
me to tell you what my idea was, if we petitioned for partition, and 
three disinterested persons appraised the land with the other property, 
they would give Reuben Young all the land he asked for, and it would 
end the strife. 

Q. —You thought if there w T as a dispute as to the title, negotia¬ 
tions might settle it? A. —No, sir. I mean to say this : m 3 'idea 
was, this property was so situated, a portion of it la}' upon the shore 
where it was valuable, and on the opposite side of the street it w r as 
very valuable where it came on the street. The new houses were 
built on the rear of this land. M 3 ' idea was, that people acquainted 
with the property would appraise it so high, that, if they gave Reuben 
his house, the}' would give him sufficient land and property that it 
would wipe it all out, — supposing the}' appraised the property — 

Q. — Or, in other words, the appraisal might be conducted as to 
settle the difficulty ? A. — If it was left to disinterested men. My 
idea was, to leave it to three disinterested men to act as commission¬ 
ers, and appraise that property. They might appraise the house at 
what it cost, and appraise the land at a reasonable price ; and then 
they would set off the land he asked for with his house, and he would 
have all he asked for too. 

Q. — You don’t know that Mr. Enos N. Young and another party 
claimed that house ? A. — They never claimed it until after they 
saw Judge Day, in my judgment. 

Q. — You know they claimed it? A. —Yes, sir. 

Q. —And there was a question of title settled finally? A. —Yes, 
sir, the title to the house. The house was built by a party; and it 
was agreed that he should build the houses on the land, and have a 
certain portion of it, and have a quit-claim deed. After the houses 
were built, I presented the quit-claim to them to sign ; and they re¬ 
fused to sign it unless Mr. Reuben Young would agree to give them 
his property after he was dead. 

Q. — And you were counsel for them ? A. — Yes, sir. 

Re-direct by Mr. King. 

Q. — Let us understand this matter distinctly before you go. At 
the time this case was dismissed from the probate court, there was 
no appearance upon the record in any way in response to your peti¬ 
tion? A. — No, sir: nobody appeared there in court. 


1882.] 


SENATE —No. 150. 


251 


Q • — Who were the counsel in the case in the Superior Court? 
A. — Judge Marston and myself. 


SMITH K. HOPKINS. Recalled. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — I want to ask you now, in the first place, about the case of 
Harrison v. Swift. What was the end of that case, as your docket 
and records show ? A. — I desire to state first to the Chairman, that, 
when I received the subpoena to produce all the dockets relating to 
that case, I was not aware there were four little dockets which were 
in existence. But, at the suggestion of Mr. Crocker, the former 
clerk, I found them stowed away in the office. I should have pro¬ 
duced them before, if I had known it. It appears from this docket, 
April term, 1867, that a rescript was sent down from the Supreme 
Court, and judgment was ordered to be entered as of the last Sep¬ 
tember term of 1866. It appears on the April term of 1867 ; but it 
lias an entry in the handwriting of the former clerk, Mr. Crocker, 
stating that this case is erroneously brought forward, signed, and 
attested by Mr. Crocker. 

Q. — Look at your record-book, and see when the record was made 
up. A. — The record appears at the end of the record of the Sep¬ 
tember term of 1867 ; and the record sa} r s, “ The following case of 
Emity Harrison v. Noble P. Swift should have been recorded in the 
September term of 1866. Attest: James B. Crocker, Clerk.” 

Q. — When was the execution issued? A. —I cannot find that 
any execution was issued. I looked all day Friday, and nearly all 
da} r Saturday, and a short time on Sunday. 

Q .—Is the case on the docket in the September term of 1867? 
A. — In the same manner it appears on the April term. The same 
memorandum is made on this, that it was improperly brought for¬ 
ward. 

Q. — Then it did go along on the docket? A. —There is no doubt 
about that, sir. 

Q. — Until the September term of 1867, and the record of the 
judgment is recorded with the judgments in the September term of 
1867, is it? [Witness referred to the book.] A. — Yes, sir : it is in 
this book containing the records of the September term of 1867, 
apparently at the end, after the record of the term had been closed. 
Then follows this case with the memorandum which I have read. 

Q .—Then, according to the records of the court, the case was 
standing alone on the docket, and pending there until the September 
term of 1867, and the counsel for the defendant is the same all the 


252 


HEARING — JOSEPH M. DAY. [March, 


while, according to your docket? A. — According to my docket, it 
.is there, but with a certificate that it was improperly there. 

Q .—Did you state, the other daj", the position of Judge Day’s 
office wfitli reference to the clerk’s office? A. —I think I did, sir. 
I stated it to some one. I cannot sa}’ whether it was here, or not. 
It is practically across the aisle. 

Q. — Was Judge Day in the clerk’s office pretty frequently? A. 
— He comes in usually most every day, when he is at home, after 
reading his paper ; and we have a little political talk together. 

Q. —Is he in the habit of suggesting and advising about the mat¬ 
ters of the records in your court? A. —Not unless I ask him. 
Sometimes I ask him how things ought to be done ; and sometimes I 
think he is right, and sometimes I think he is wrong. 

Q. —Do you know any thing about when those entries were made 
in this docket? about the case being improperly brought forward? 
A. —No, sir. 

Q. —You have no knowledge of that? A. —No, sir. 

Q. — Did I ask }^ou to bring any other papers? A. —You asked 
me to bring the docket in the case of Young against Young, and the 
papers also. 

Q. —Show them to me. [Witness produced the papers.] A. — 
Those are all the papers I found, sir. 

Q. — Will you state to the Committee the name of the case, the 
date of its being upon the docket, and who is the counsel? A. [after 
referring to the docket.] — It appears to be headed “ Reuben Young 
v. John Young and Enos N. Young: Petition for Partition. Entered 
at the April term, 1873.” Hutchinson, Marston, and Crapo are en¬ 
tered upon the docket for the petitioner, and Day for the defendant. 

Q. — And what was the result of the case ? A. — Neither party — 

Q. —As shown by your docket? A. — I think I have seen it on 
the docket — 

Q. — Will you be kind enough to read what the docket says as to 
the action of the court on that case ? A. — There is nothing here ex¬ 
cept that the plaintiff’s agreement filed. 

Q. — Let me take it. There doesn’t any thing appear here ? A. — 
Not as to the final action of the court. 

Q. —I want to ask } r ou if it doesn’t appear upon the docket that 
commissioners were appointed to make a partition? A. — I didn’t 
notice it at that time. I was proceeding to read it when you spoke. 
[Reading.] “ Defendants file petition for partition. Order of parti¬ 
tion ordered. Jno. A. Hillard, Isaiah Gifford, and Joshua Pajme.” 
I didn’t see the entry of partition ordered. 

Q. —The entry was right in the docket. Your eyesight must be 
bad. Now, what papers are on file in the case? A. —This appears 


1882.] 


SENATE —No. 150. 


253 


to be a petition for partition signed by Reuben Young, and signed by 
B. F. Hutchinson, his attorney. This appears to be a copy of the 
same petition, and the file-mark of the clerk, and an order of notice 
signed by James B. Crocker, and also the return of Robert Knowles, 
deputy sheriff, of the service of the same. 

Q .— What other paper is there? A. — This is Reuben Young v. 
John Young, and there is a petition for partition. “ I appear for the 
defendant. J. M. Day.” Filed April 11, 1873. 

Q. — And those are the only papers in the case? A. — The only 
papers in the case. 

Q. — The partition was ordered? A. —Yes, sir. I thought there 
was an entry on the docket somewhere giving the names of the par¬ 
ties. It don’t seem to appear on the docket. 

Q. —I believe that is all you were asked to bring? A. —Yes, sir, 
I believe it was. 

Cross-Examination by Mr. Talbot. 

Q. — Is there any return of the commissioners ? A. — None among 
the papers. 

Q. — No notice upon the docket? A. —I will take a look and see 
before I answer again. [Referring to the book.] No, sir, there is 
nothing that appears, but what I read before. 

Q .— Did the commission issue? A. — It only appears that the 
men I named were appointed commissioners. 

Q, —There is no entry of the issuing of any commission? A. —• 
No entry of the issuing of any commission. 

Q. —What is the earliest date at which that case appears to be in 
the Superior Court from the record you. have before you? A. — It 
appears to have been entered at the April term, 1873. 

Q. _Have }’ou the records in the cases of Fish and Studley? 

A. —No, sir. 

Q, _(By Mr. Gooch.) — How long have you known Judge Day? 

A. —About twenty or twenty-one years. 

Q, _State fully to the Committee what opportunity you have had 

of knowing in relation to him, as to his habits, or particularly as to 
the use of intoxicating liquors. A. — I have had no opportunity to 
know about his using intoxicating liquor. I never go where people 
drink. 

Q t _Have you ever known him to use it? A. —I never have, sir. 

Q._Have you ever seen him under the influence of it? A. —Not 

to my knowledge. I never saw any thing — I have — I am very 
little acquainted with drinking people, and should hardly be able to 
tell whether a person is intoxicated or not, unless they were seriously 
intoxicated. 

Q .—Have you been in the habit of seeing Judge Day almost 


254 


HEARING—JOSEPH M. DAY. [March, 


daily? A. — Since 1874 I have seen him almost every week-day he 
has been in Barnstable. 

Q. — Have you been accustomed to peeing him in his court? A. — 
Yes, sir, I have. 

Q. —Do you practise in the court? A. —I have some little prac¬ 
tice there. 

Q. —Frequently in the probate court? A. — I think I hardly 
ever miss a probate court under any circumstances when I am in 
Barnstable. 

Q. —State what you know about the treatment Judge Da} 7 gives 
to parties who go into his court to transact business. A. — Well, 
sir, I have never seen an} 7 thing very wrong in his court. 

Q. — State further in relation to the matter. Does he treat suitors 
with as much attention and kindness as can be done consistently with 
the rapid transaction of business? A. — I think he treats them all 
fully as kindly as I should under the same circumstances. I never 
saw Judge Day what I call rude to any person. I have seen him 
somewhat energetic sometimes. I have seen him tell men and women 
that their accounts were wrong, in a manner which meant that they 
were wrong, and there is no mistake about it. 

Q. —He told them emphatically that the accounts could not be 
passed upon as it was? A. —Yes, sir. 

Q. — And in the mode of transacting business there, won’t you 
describe it to the Committee? Whether or not there isn’t a pres¬ 
sure, during the hours when the probate court sits, to such an extent 
upon the judge of probate that he is obliged to use despatch in the 
business? A. — Well, sir, usually from nine o’clock to half-past 
eleven, I should think the judge of the probate court and the register 
were both very busy — quite busy. 

Q. — Frequently under great pressure, in order to despatch the 
business which must be done to accommodate the parties in court? 
A. — I could not say about that; but I frequently see people waiting 
for their turns to come to see the register and the judge, and I should 
think they were people who generally wanted to take the train and 
were in a hurry. 

Q. — Is it not true that the people who come up in the early morn¬ 
ing train, about half-past seven o’clock, are anxious to despatch their 
business and take the half-past eleven o’clock train back? A. —Yes, 
sir, I have heard the desire expressed very frequently to get through. 
I cannot name particular instances of people who expressed the desire ; 
but I remember the fact of people speaking of the train, and coming 
and looking at my clock, and seeing what time they would have. 

Q . — After the exceptions were overruled by the Supreme Court 
in the case of Swift, previously referred to, and the rescript came 


1882.] 


SENATE—No. 150. 


255 


down, was there any thing more that Judge Day could do as counsel 
in that case ? 

-^L\ King. That is hardly competent for him to answer. 

Mr. Gooch. Well, if it isn’t, it must be because of the assump¬ 
tion that the Committee, and all persons who are to pass upon this case, 
are so familiar with the proceedings in court that they would know it. 

The Chairman. Inasmuch as the witness was not an officer of the 
court at that time, it would seem to be simply asking his opinion of 
the law. 

Q. (By Mr. Gooch.) — In whose handwriting were those entries 
where the statement is made that the case is carried forward by mis¬ 
take? Are they not in the handwriting of your predecessor? A. —• 
James B. Crocker, sir. 

Q • — When did he go out of office? A. — In 1876. Dec. 31 was 
the last day he acted. I came in Jan. 1, 1877. 

Q. (By Mr. King.) — I suppose the probate court of Barnstable is 
very much like other probate courts, as to the despatch of business? 
A. —I have never done business in any other probate courts. I 
cannot say about that. 

Q. —Isn’t there a great deal of time — days — when there is 
nothing whatsoever for the judge to do? A. —Between half-past 
eleven and half-past two there is hardly ever an}’ thing to do. 

Q. —Practically there is great abundance of time in that probate 
office for the discharge of all the duties that devolve upon the officers 
of the court, isn’t there? A. — I suppose there is, sir. 

Q. —Isn’t the judge entirely at leisure and released from all 
duties as probate judge for a very large portion of the time? A. — 
You mean out of the probate-court days? Yes, sir: I think he holds 
about twelve courts a year in Barnstable, — I don’t know as there is 
so many as that, ten or twelve, — about one a month. 

Q. — About one a month at Barnstable ; and how many elsewhere? 
A. — The statutes are changed so often, I can’t hardly keep run of 
them ; but I think he has four courts twice a year. 

Q. — Four and four are eight, and twelve and eight are twenty a 
year. You say the holding of twenty courts a year necessitates the 
driving through of business in such a rapid way that a man need be 
abrupt to litigants? A. — Well, sir, I understood the question in re¬ 
lation to the pressure of business to relate to the days on which the 
probate court was held there. 

Q. — Now, you were inquired as to the matter of the use of intoxi¬ 
cating liquors by Judge Day. Let us return to that. I want to ask 
you if you have seen him at any time when you thought he had been 
using intoxicating drinks? A. — No, sir, I cannot say I have. 

Q. —Well, can you say you haven’t? A. — Yes, sir, I think I 


can. 


256 


HEARING -* JOSEPH M. DAY. [March, 


Q. — Well, then, what did you mean by your statement to the 
Committee before, when asked about that, you were no judge of how 
far a man might drink? A. — I explained it at the time. He might 
be intoxicated week after week, but I never saw any thing I thought 
was intoxicating. 

Q .—You never saw any thing you thought was intoxicating? A. 
— No, sir. 

Q .—Well, let us have the full benefit of your indication, if there 
is one. Whether you have seen him there when 3*011 thought he had 
been using intoxicating drinks at all. A. —I don’t think I ever saw 
him in my life when the thought came into my mind that he had been 
using intoxicating liquors. 

Q .—You don’t think you ever did? A. — I don’t think I ever 
did. 

Q. —That is all. A. —Nevertheless he may have drank oceans. 

Re-cross by Mr. Gooch. 

Q. (By Mr. Goocii.) —Don’t the parties having business at the 
probate court come down on the half-past eleven train from the 
west? A. —They do usually. 

Q. — At what hour are they obliged to leave? A. —Formerly at 
half-past two, and during the winter the trains left at four. Formerly 
they had from half-past eleven to half-past two. 

Q. — Then from half-past eleven to half-past two the suitors from 
that section would be before the court? A. —They w*ould : yes, sir. 

Q. — And from the east the great body of the suitors come at half¬ 
past seven in the morning? A. — Yes, sir, usually : a large majority 
of them. 

Q. —And usually leave at half-past eleven? A. — Usually a 
large majority leave at half-past eleven. 

Q. — And, coming from the west, the } 7 come up at half-past eleven, 
and formerly had to leave at half-past two ; and, by the present ar¬ 
rangement of trains, they can remain until four? A. —Yes, sir. 

LABAN BAKER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — You reside where ? A. — In South Yarmouth. 

Q. — Are you a native of Yarmouth? A. —Yes, sir. 

Q. — Have you had experience in the probate court of Barnstable? 
A. — Not a great deal for some twenty or twenty-five 3 -ears. 

Q. —How recently have 3*011 had any matter there? A. — Last 
}*ear. 

Q- —What was that case? A. — It was a case on account of m 3 7 
brother’s death. I acted as administrator. 



1882.] 


SENATE —No. 150. 


257 


Q‘ ^ ou were administrator of your brother’s estate, and his 
name was what? A. — Benoni. 

Q • Well, now, if you had business yourself personally with the 
probate court in relation to that estate, we wish 3’ou would state to 
the Committee what it was. A. —Shall I begin at the first or last? 

Q’ —Well, sir, I don’t know. I haven’t seen the witness, and 
don t know. If 3'ou will be kind enough to state briefty what your 
business in the court has been. A. — I was administrator on my 
father’s estate. That is the first. 

Q. (By Mr. Talbot.) — Your father’s name? A. — Benoni. I 
have some papers ly which I can recall to memory better. [Witness 
occupied some time looking over his papers.] Well, I can recollect, 
but not so well as to take off the figures and dates. I think I must 
have left them at home. As I said, I was first administrator on my 
father’s estate, and nothing particular, as I know of, occurred, that I 
could sa3’ against the probate office. Then I was chosen to take the 
wards of Gideon T., Manton T., and Nathan II. Baker, who were 
under my care for about three years. 

Q. (B3 t Mr. King.) —You were guardian? A. — Yes, sir. There 
was considerable to do; and I used to go to carry m3' account in, and 
sometimes took m3' book to the probate office, and I used to get some 
one to make up the account. I used to cany m3 7 book, and used to 
pa3 T them for it. Finalty there came a division between them ; and 
each one wanted to have their property, and I gave it up. After 
that m3 7 brother Benoni died, and I was chosen administrator b3' 
Judge Da3'. 

Q. — Now, sir, proceed to state, briefly as 3*011 can, to the Com¬ 
mittee, if you had any duties in the probate court, and what hap¬ 
pened there. A. — Well, I went and got m3’ papers at the probate 
court,—license or whatever you call it, — and I paid one dollar and 
fift3’ cents for the papers. I went on with m3' business. 

Q. (B3 7 the Chairman.) —To whom did 3'ou pay the dollar and 
fift3' cents ? A- — I paid it to the clerk. I think it was Mr. Thacker : 
or Mr. Judge Diy’s son was in and out there, and I won’t be sure 
but he said the papers were a dollar and a half; and I paid it. 

Q. (By Mr. Gooch.) —Who said the3' were a dollar and fifty 
cents? A. — The clerk, or Mr. Da3’’s son: I won’t be sure which. 
He was in there. 

Q. (B3’ Mr. King.) —Did you finalty settle 3'our account with that 
estate? A. —Yes, sir. ♦ 

Q. —Will 3’ou state the circumstances of settling it? Did 3’ou 
come to the probate court with it? A. —Yes, sir, I came this way: 
I asked Mr. Tljacher, the clerk of the court, if he could assist me, 
as 1113’ e3'esight being rather poor, and he could do it quicker if h§ 


258 


HEARING —JOSEPH M. DAY. [March, 


would; and he said he w r ould. I carried my books there, and told 
him I wished he would look them over. 

Q. —Now, be kind enough to come right down to your interview 
with Judge Da}’, if there was one. A. —I hadn’t any interview with 
the judge then ; but, Mr. Thacher says, the law is such we cannot 
make it out. 

Mr. Gooch objected to the testimony. 

Q. (By the Chairman.) —If you can testify to any thing which 
tends to show the fitness or unfitness of the judge to hold the office of 
judge of probate, we will hear it. Come right to the interview with 
him, if you had an}’. A. — Well, he had a son, and I paid him two 
dollars ; and he said he must go to dinner. He said he wouldn’t go 
all over that. This was Judge Day’s son. 

Q. —Well, what Judge Day’s son said is not material, unless 
Judge Day participated in it. A. — I didn’t see the judge at all. 

Q. (By Mr. King.) —Did you have any interview with Judge Day 
at all? A. —No, sir: the son made out my account. 

Q .—How did you happen to go to the son? A. —Because Mr. 
Thacher pointed me to the son. 

Q. — Is that all you know ? A. — Well, I was going on to state — 

Q. —Go on. A. —Well, I was going to pay — 

Mr. Gooch. I object that this is something we don’t know any 
thing about. I submit that conversation with other parties is not 
material. 

Q. (By the Chairman.) —Did you have any thing to do with 
Judge Day about this transaction? A. —No, sir. 

The Chairman. I don’t think there is any thing this witness can 
testify to that is material to this inquiry. 

Mr. King. I have never seen the witness. 

The Chairman. Call the next witness, Mr. King. 

Mr. King. I don’t think I have any witnesses I care to call at 
present. 

The Chairman. Have you any papers to offer? 

Mr. King. I want to put in a fact from the docket which is pro¬ 
duced from the court of insolvency, that the petition of Noble P. 
Swift was filed March 21 , 1867 , and that the discharge was granted 
on the eleventh day of November, 1867 . 

The Chairman. Have you any thing further to offer? 

Mr. King. I have the original papers in the case of Jonathan 
Kelly and in the case of Ada Stevens. It appears that Samuel Snow 
was appointed guardian on the 9 th of February, 1875 , by Judge Day, 
and that a license to sell real estate was issued to the guardian by J. 
M. Day, judge of probate, on the twelfth day of February, 1878 . I 
don’t think I can expedite the business by undertaking to put in any 
further evidence gt this hearing. 


1882.] 


SENATE —No. 150. 


259 


MRS. ANDREW NEWCOMB. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q- — Were you a widow at the time of y'our marriage? A. —Yes, 
sir. 

Q • — What was your former husband’s name? A. — Willard A. 
Crowell. 

Q. —And you resided where with him? A. —Barnstable. 

Q •—How did he die, and when? A. — He was drowned on the 
fourth day of September, 1873 , in Barnstable Harbor. He was fish¬ 
ing. The boat capsized in a squall, and he was drowned in attempt¬ 
ing to reach the shore. 

Q. —Previous to his death, do y*ou know whether he applied for 
insurance upon his life? A. —Yes, sir, he did. 

Q. —How long before? A. — A few days, — not more than two 
or three days. He applied to the agent. 

Q. — Did he effect any insurance before his death? Do you know 
whether any policy was issued to him? A. —No, sir: because he 
was drowned before the letter of acceptance reached the agent. He 
was drowned the same afternoon that the letter was on its way to the 
agent. 

Q. — Do you remember what company' the application was made 
to? A. — Yes, sir : the Mutual Life Insurance Company of this 
city. 

Q. — Then, upon his death, who was appointed to administer upon 
the estate ? A. — I was. 

Q. —Were there any steps taken to intercede with the insurance 
company 7 to see if they 7 would make any allowance? and, if so, please 
state what. A. —Well, there was none made at my* option. I 
never asked anybody to make any, and never expected any 7 , because 
I knew they* were under no obligations to pay' me any 7 thing; and so, 
of course, I didn’t expect any thing. 

Q. — What was the name of the agent through whom y'our husband 
applied? A. — Ansel P. Lothrop. 

Q. — Do you know whether he exerted himself to obtain an allow¬ 
ance from the office? A. —I have sometimes thought he did. I am 
not certain he did. 

Q. — Please state to the Committee what there was about it, if 
you knew of any efforts being made in the direction of obtaining an 
allowance. Did y 7 ou know of any' efforts being made before the 
allowance came? A. —Yes, sir, I think I did. I heard something 
said about it, — about Judge Day’s going to Boston frequently ; and 
they thought likely he might go and sec about it. 


260 


HEARING —JOSEPH M. DAY. [March, 


Q. — Had you had any tiling to say to him about it? A. — I never 
had anj’ thing to sa}^ to him about it. I never thought about it. 

Q. — Was there an allowance made finally? A. —Yes, sir. They 
presented me with a check for five hundred dollars. 

Q .—What was the first 3*011 knew about that? A. —Ansel P. 
Lothrop, the agent of the compan}*, stated that the company had sent 
him a check to give to me. 

Q,. —Did 3'ou meet him an} T where for the purpose of receiving the 
check? A. —Yes, sir: at the court-house, in the probate office. 

Q. —At his request? A. — Mr. Lothrop said he would either send 
it to me b} T mail, or retain it until I called for it, or put it into the 
probate court at the March term. He would do either of the three. 
I received the letter from him Saturday, and went down Monday to 
get it. I thought perhaps it was best to get it. I went down to the 
probate office ; and he was there, and another gentleman. I cannot 
remember who the gentleman was: I am quite sure there was another 
gentleman with him. He had a letter with the check. 

Q. —Please state what took place there at the probate office. A. 

— He gave it to me. The} r had made a kind of letter of acknowledg¬ 
ment of thanks to the compan}*, and that was to be inserted in the 
paper. I signed m} T name to it, and they put it in the paper. 

Q. —You signed an acknowledgment, and the check was delivered 
to 3’ou? A. —Yes, sir. 

Q. — Tn the presence of whom? A. —Judge Da}*, Ansel P. Lo¬ 
throp, and the other gentleman : I don’t know who he was. 

Q. — After you received a check, what did } r ou do? A. — I started 
to go to the bank to deposit it, and did so. 

Q. —What became of Mr. Lothrop and the other gentleman? A. 

— They went out of court. 

Q. — Towards home? A. —Towards the east. 

Q. —In the opposite direction from the bank? A. —Yes, sir: 
towards the east. I came out, and Judge Da} r came out with me ; and 
we walked over there together. After we got over there, he asked me 
what I intended to do with the mone}*. I told him I intended to de¬ 
posit it then, and I hadn’t made up my mind to spend it for anything 
particularly. I told him I thought I should deposit it in the banl^. 
He said he should want fifty dollars of it, — twent}*-five for expenses 
of the court, and twent}*-five for his services. 

Q. — What did you do then? A. — I was quite surprised, and 
wasn’t expecting any thing of the kind, and didn’t know I was in¬ 
debted to him in any way. I supposed, if he went to see the officers 
of the company, he did it of his own option, and out of kindness to 
me. I didn’t understand about the court, but supposed it must be 
about the probate court in settling my husband’s estate. 


1882.] 


SENATE —No. 150. 


261 


Q. —You never knew of any other court? A. — No, sir. 

Q- — You proceeded along to the bank? A. : — Yes, sir. 

Q. —What took place there? A. —I gave the check to the treas¬ 
urer, and told him I wanted fifty dollars ; and he gave me fifty dollars 
of it, and the balance I deposited. I gave the fifty dollars to Judge 
Day. 

Q. —I will ask you, with reference to the estate, whether 3~our 
husband left enough to pay — what the condition of the estate? 

Mr. Burdett. How is that material? 

Mr. King. I want to show that this woman was in absolute and 
utter poverty at the time of her husband’s death. 

Witness. The whole amount of the inventory was three hundred 
and fifty dollars and some cents : I don’t remember. I have a paper 
in my pocket. 

Q. — Whether there was enough to pay the debts against the estate 
in full? A. —He allowed the creditors fifty per cent. 

Cross-Examination by Mr. Burdett. 

Q. — Mrs. Newcomb, I understand you to sa} r that there was no 
legal obligation on the part of the company to pay 3 011 an3 T thing for 
this insurance? A. — No, sir 

Q. — Whatever you got from the compan3 r was a mere gratuity 
from them? A. —Yes, sir. 

Q. — And was obtained, 3*011 don’t knowhow? A. —Well, as I 
stated before, I heard Judge Day went to Boston frequently; and 
most likely he would go into the office to see the company in regard 
to the matter. 

Q. —You don’t know but what Judge Day saw the company, and 
spent a good deal of time about this matter, do you? A .—I don’t 
know. 

Q. — You don’t know any thing about anybody else making an 
effort ? A. — No one in particular. 

Q. — Do you know whether the agent of the company saw Judge 
Day, and asked him to do it for you? A. — No, sir, I do not. 

Q. _You know nothing, then, about the amount of services ren¬ 

dered by whoever it was that obtained the money? A. — No, sir. 

Q. — What was the paper you were to sign when you received the 
check? A. — It was an acknowledgment of my thanks to the com¬ 
pany for the gift. 

Q. — Do you know who drew it up? A. —Either Mr. Lothrop or 
Judge Da3 T : he was sitting there. 

Q. — One or the other? A. — I don’t remember which. 

Q .— What was to be done with it? A. — It was to be inserted in 
the paper. 


262 HEARING —JOSEPH M. DAY. [March, 

Q. — Did any thing else appear in the paper in connection with 
that subject? A. — No, sir : nothing that I know of. 

Q. — Now, who first called this matter to yonr attention, in refer¬ 
ence to this proceeding against Judge Day? A. — One of the select¬ 
men of the time in the town of Brewster. 

Q. — When? A. — It may be the last of January,—about the 
last of January or first of February. 

Q. — What was his name? A. —Thomas D. Sears. 

Q. — Have you had any conversation with anybody else about 
what you should testify to here? A. —Yes, sir. 

Q. —With whom? A. —Am I under obligation to tell this? 

Q .—Not if it is a matter y*ou are delicate about: we won’t press 
it. I think you ought to answer if you have no objection. A. — No 
one else but Mr. King. He was at my house on Sunday’, speaking of 
the matter. Do you mean in relation to the petition? 

Q. —In relation to your testifying here. A. —Yes, sir. 

Mr. King. Let me say right here, that, in pursuance of the order 
of the Committee to get the facts — 

Mr. Gooch. I think it is highly undesirable to have the witness 
interrupted. 

The Chairman. Proceed with the cross-examination. 

Q. (By Mr. Burdett.) —Do you think you remember the precise 
conversation that passed between you and Judge Day- after you had 
received the check for five hundred dollars, and left the probate office? 
A. — In relation to that matter, I did. It is just as I stated it. I 
remember it well. 

Q. — When was that? A. — I think it was the second day of 
February, on Monday. 

Q. —How long ago? A. — 1874 . 

Q. — Will you state it again? A. —The second day’ of February, 
1874 . 

Q. —No: what the conversation was? A. —He asked me first 
what I intended to do with this money’, and I told hihi I was going to 
deposit it in the bank for the present; and he said he should want 
fifty dollars of it, — twenty-five dollars for expenses of the court, and 
twenty-five for his services. 

Q. — Do you remember the exact words, expenses of court? A. 
— Yes, sir : that is the way I understood it. 

Q. — Are you prepared to say he didn’t say expenses, or rather 
are you prepared to say he did not say simply expenses? A. — He 
said, “for expenses of court.” 

Q. —I ask you if you can say he did not say simply, “ twenty’-five 
dollars for expenses, and twenty-five dollars for services,” instead of 
“ twenty-five dollars for services, and twenty-five dollars for expenses 


1882.] 


SENATE —No. 150. 


268 


of court”? A. — No, sir: twentj'-five dollars for expenses of 
court, and twenty-five dollars for services ; and that is what I paid 
him. 

Q •—You were the administratrix of your husband’s estate? A. 

— Yes, sir. » 

Q -—And do you remember what allowance the judge gave }'Ou 
out of the estate? A. — Yes, sir: two hundred dollars. 

Q* — Were there any other persons interested in the estate besides 
3 T ourself? A. —Well, what do } t ou mean? — what did he owe? 

Q • — Aside from the creditors. Did you have any children? A. 

— Yes, sir, I had one child. 

Q. — And only one ? A. — Only one. 

Q • — Do you know what were the debts of the estate ? A. — Well, 
I paid his creditors one-half; and that amounted to a hundred and 
twenty-four dollars and some cents: I cannot say. I have the 
paper. 

Q. —That left about fifty dollars, didn’t it, over and above your 
allowance and the allowance to the creditors? A. — It left twenty T - 
six dollars, — a little over twenty-six dollars. I have the paper here. 

Q. — We should like to see the paper, if you have it. [Witness 
handed counsel the paper.] What do 3*011 mean, Mrs. Newcomb, 
when you say’ that Judge Day’ allowed the creditors fifty’ per cent? 
What did he have to do with the creditors? A. — I had that left to 
pay’ their debts. 

Q. — After he had made your allowance, and allowance for the 
expenses, there was enough left to pay the creditors fifty cents on the 
dollar? A. — Yes, sir. 

Q. — And they- were kind enough to take it? A. — Yes, sir, some 
of them. 

Q. — Now, isn’t it the case, as # shown in this paper, that the whole 
amount of the inventoiy T was $350.50, and the judge allowed you two 
hundred dollars, and that he allowed for administration services and 
expenses $26.25? A. — Yes, sir. 

Q. —Leaving $124.55, which was fifty per cent of your husband’s 
debts. And that balance you took and paid around among the 
creditors? A. —Yes, sir. 

Q. — And this other matter which we have already’ spoken of was 
as you have stated to Mr. King, and was paid to you by the company ? 
A. — Yes, sir. 

Q. — And has been obtained, you don’t know how or by whom? 
A. —Unless it was through Judge Day’s efforts on his own account. 
There may’ have been others who went to see the company’ about it. 
I could not say, because I never asked any one to go. 


264 


HEARING —JOSEPH M. DAY. 


[March, 


Re-direct by Mr. King. 

Q. —Have you any knowledge, Mrs. Newcomb, of any efforts by 
Judge Day with the company? A. —No, sir. 

Q. — Did he take any steps in pursuance of any suggestions of 
yours? A. — No, sir. 

Q>. — Do you know whether or not other people interested them¬ 
selves in your welfare, and interceded with the company for you? 
A. — I don’t know, sir. 

Q. —You have no knowledge who did go to the compan} T , and how 
it was obtained? A. — I think very likely some one did ; but I never 
knew about it. 

Q. — And it was a mere surmise about Judge Day upon his taking 
this money? A. — It was told me, as I said before, that he came 
into Boston frequently ; and I thought likely he would perhaps inter¬ 
cede with the company for me. 

Q. — Somebody told 3011 they thought likely^ he would? A .— 
Yes, sir. 

Q. (By Mr. Duniiam.)— Was this mone}' passed over to the 
estate, — this four hundred and fifty dollars, — or put into the bank in 
your own individual name? A. — M}’ own individual name. 

Q. — It never was passed to the estate? A. —No, sir. 

Mr. Dunham. I don’t know under what charge this evidence was 
put in. 

Q . (By Mr. Talbot.)— How long were you in passing from the 
probate office to the bank, and finishing the business you did in the 
bank? A. — We went right over there; and I don’t remember 
whether we had to wait for Mr. Lothrop, or whether he passed the 
check right to me, and I went and deposited it. 

Q. —How long was it? A. —It wasn’t long. I could not say 
certainly what time it was. 

Q. — And there was no long conversation about this matter? A. 
— No, sir. 

Q. —And no objection on your part? A. —No, sir. It was en¬ 
tirely unlooked for by me, and I had no time for consideration. 

Mr. Burdett. One of the members of the Committee has asked 
a question, and I will read the answer. Here is the allegation upon 
which it is founded : — 

u About the year 1874 he wrongfully demanded and received from 
Alice Crowell, now Alice Newcomb, the sum of fifty dollars, she be¬ 
ing at that time administratrix of the estate of Willard A. Crowell, 
deceased.” 

The plain intention of it is to show that he acted as counsel for her 
as administratrix. The testimony has gone in ahead of the specifi¬ 
cation, and that is all it is worth. 


1882.] 


SENATE — No. 150. 


265 


MARY C. PADDOCK. Sworn. 

[Testimony taken in 1881.] 

Direct Examination. 

Q. (By* Mr. King.) — You reside where? A. — East Dennis. 

Q. —You are a native of Dennis? A. —Yes, sir. That was my 
native place. 

Q. — How far is that from Barnstable? A. — Ten miles, I think. 

Q. —Do you know Judge Day of the probate court? A. — I never 
saw him but twice. 

Q. — Did you have occasion to go to the probate office at any time? 
A. —Yes, sir. In the spring of 1871 it became necessary for me to 
place m 3 * sister in an asylum for the insane. She had been in a ner¬ 
vous condition, at some times uncontrollable ; and for years I had been 
compelled to restrain her. I was now left solely^ in care of her, — 
the only one of the family left to care for her. And in the spring of 
that year she became uncontrollable and dangerous, and it was the 
advice of our physician that she be placed at the asylum : so accord¬ 
ing^* I knew there must be some law — I knew there must be some 
form of law to have her entered ; and I consulted the statutes, and 
saw, that, by obtaining an affidavit of two physicians and the consent 
of the judge of probate, it could be done. Our family phy*sician 
readily* gave his name, — it was his advice that the thing should be 
done ; and another physician was called, who also gave his. And 
then our physician said, that, if it was possible for me to take my 
sister to the court-house, it would be better, he supposed ; but in case 
I could not, why*, he said that his affidavit — as he was personally 
known to the judge — would be sufficient, as he would know he would 
not do any* thing wrongfully to place a person there; and probably T 
I should not have to leave the carriage, as he would come down, per¬ 
haps, and look at my sister ; and a look would be sufficient to satisfy 
him as to the state of her mind. My friend who drove us over went 
up with the affidavits. 

Q. —That was after you had got to the court-house? A. — After 
I had got to the court-house. 

Q .—And the horse hitched there? A. —Yes, sir. My friend 
went in, supposing he could do the business. After waiting some 
time, he returned to the carriage, and I saw that there was difficulty; 
and he asked me to go up, and I went up. Of course I had been 
now three weeks without sleep, and 1 expected to meet a friendly 
face, and have a friendly word. I didn’t know what had passed. I 
knew what he was going to ask for; but, before I had time to speak, 
the judge turned about restlessly, and says, “Well, y*ou want to get 
this woman off your hands. Bring her up here, and I will serve the 


266 


HEARING —JOSEPH M. DAY. 


[March, 


writ.” Well, for a moment, the manner and tone were so repulsive, 

I could not speak. But in a moment I replied, and said, “ This 
cannot be done. I cannot do any such thing, for she is now docile 
and quiet; and she would not understand this, and it would excite 
her, and I want some other form taken.” He said, “ Oh ! you want 
to get her off your hands. Bring her in, and I will serve a writ.” 
It was a very repulsive manner, and I knew that would not be suita¬ 
ble in her case, and she could not stand it; and I told him so, and 
tried to show him why it could not be done. But he would not listen 
to a word I said to him : he would shrug his shoulders. I spoke of 
what the doctor had told me, and tried to refer to others. I had 
consulted Dr. Jarvis and Dr. Howe of Boston. He shrugged his 
shoulders, aud wondered the}’ knew so much. Finally he said, 
“That is all that I can do for }’ou. If you want an} T thing done, 
bring her up here, and I will serve a writ.” And then he began to 
light his cigar. He had his feet up somewhere high. He lighted his 
cigar, and began to smoke; and I left. 

Q. — What followed then? A. —Of course there was nothing to 
be done. I don’t remember exactly. I went home. But }’ou know 
in such a condition as I was, after such mental strain and physical 
exhaustion, I was in no condition to meet such treatment. We all 
of us, when we are in deep sorrow and heart-sore, want friends — 
friends with hearts — to deal with; and in that case I did. But our 
physician had made arrangements. He thought Judge Day would 
give me this permit; aud he had promised to arrange for his patient, 
so he could leave on Monday morning. This was on Saturday, I 
think, or Friday. I don’t remember exactly now, it has been so 
long. It was ten years ago, —just the date : but on Monday morn¬ 
ing he was to start with her; and of course, when I got home, I 
immediately sent to him word that I could not go. 

Q. —Your sister was finally sent to Taunton, was she? A .— 
She was. 

Cross-Examination . 

Q. (By Mr. Talbot.) —What process was used afterwards by 
which your sister was sent to Taunton? A .—I really don’t know. 
Our physician said that he would go to Taunton, and find out there 
whether she could be received. When he came back, he said that he 
had it all arranged, that, with the affidavits that he carried and my 
guaranty to pay her expenses, she could be received. And that was 
done, I suppose, before the judge of Norfolk County probably; but 
I don’t know. 

Q. — When you went to the probate office to see Judge Day, Miss 
Paddock, didn’t you suppose that these certificates that you brought 
with you were all that were necessary to enable you to send your 


1882.] 


SENATE —No. 150. 


267 


sister to the insane hospital? A. — I thought that with them the 
judge would give me the permit. I thought it necessary to get a 
permit from the judge. 

Q • — And nothing else was necessary, you supposed? A. — I 
thought so. 

Q- — Was your sister at that time with you in the carriage, and did 
you leave her? A. —I left her when we got to the court-house. 

Q • — Where did you leave her? A. — In the carriage. This 
friend of mine, a gentleman, sat with her. ’ 

Q . — In the carriage? A .—Outside the probate office, yes, sir. 
She was gentle that morning. She onty had severe paroxysms ; but 
there was no calculating when the}’ would occur. 

Q . — Where did you intend to take your sister to when you took 
her into the carriage, and brought her to the ^probate court at Barn¬ 
stable? A. —Our physician thought that it would not be necessary 
for her to leave the carriage. He thought, that, by speaking to the 
judge, he would come down. He thought his name to this paper 
would show it was necessary. My friend explained to him, I sup¬ 
pose. 

Q. — That is a very satisfactory answer so far as you understand 
the question. But you have not quite understood. You say it would 
only be necessary for the judge to see your sister, and this would be 
done? A. — If he would grant her a permit to send her to the 
asylum. 

Q .— And then you would go right on to the asylum? A. —Oh, 
no, sir! I was to return home, and our physician was to accompany 
her Monday morning. 

Q. —Did you ask Judge Day to go down to the carriage? A. — 
I did not. He said he could not do any thing. I suppose my friend 
had asked him. 

Q. —Just answer the question. Did you tell him your sister was 
in the carriage? A. — He evidently knew it; because he said, 
“ Bring her up.” 

Q. —Did you tell him? A. —No, sir. 

RUSSELL MARSTON. Recalled. 

[Testimony taken in 1881.] 

Direct Examination — Continued. 

Q. (B} r Mr. King.) —I will ask you if you have been in the 
habit of going to the probate court, more or less, in Barnstable 
County? A. —No more than I stated the other day. I have seldom 
been there, except at the time I went on business: in fact, I don’t 
know that I have ever been there at any other time. 


268 


HEARING — JOSEPH M. DAY. [March, 

Q. —That was how long ago? A. — I think it is about seven or 
eight } T ears ago. 

Q. —Then, I won’t call your attention to that. Mr. Marston, do 
you recollect going to the Cape some seven or eight 3’ears ago in the 
same train with Judge Da3 T ? A .— I could not state the time. I 
should think it might be somewhere in that neighborhood, possibly 
longer or shorter: I could not sa3*. 

Q. —Now, will 3 t ou state to the Committee what 3'ou observed of 
Judge Da3 T during that passage from Boston to Barnstable? A .— 
He was in compan3 T with some ladies, and was what I called under 
the influence of liquor, —* so much so, that it attracted the attention of 
the passengers. The lad3 T who sat side of me said — 

The Chairman. What was said is not competent, Mr. Marston. 

Q. —Did 3 r ou observe, any thing in connection with his drinking? 
A. — I did. 

Q. —State what. A. —‘He had a bottle and a glass, and had a 
smell of liquor. 

Q. —There was a bottle and glass : what was done with them? I 
wish 3'ou would state in 3 T our own wa3 T to the Committee, Mr. 
Marston, as well as you can? A. — I think the judge went to the 
closet to get water occasional^, back and forth to the seat where he 
was sitting ; and he became, in my judgment, rather silly, —had that 
appearance to me. 

Q. —What was done with the bottle and the glass? that is what I 
want to call 3 T our attention to. A. I can’t tell 3’ou, sir. 

Q. — Did 3 0U see them used ? A. — I saw it tipped, and something 
turned out of it. 

Q. — Then, what was done with what was turned out? A. — Drank 
it, of course ; and I think the ladies drank some with him : I am not 
certain they did. 

Q. —How long a time was it on the passage? You said the atten¬ 
tion of the people was attracted b3 r what was going on : for how long 
a time during the passage was that a matter of observation on the 
train ? A. — The largest part of the passage, — some hour and a half, 
or two. 

Cross-Examination. 

Q. (B3 7 Mr. Gooch.) —Mr. Marston, in what 3 r ear was this? A. 
— I could not state, sir, otherwise than I did before, that it was in 
the neighborhood of seven or eight years ago, to the best of m3 r 
judgment. 

Q. — How near were you to Judge Day in the cars? A. — I think 
the judge was sitting two seats on the opposite side from where I sat, 
ahead of me. I think it was two seats. 

Q. — Where were the ladies sitting? A .—In the seat with him, 
the seat turned back. 


1882.] 


SENATE —No. 150. 


269 


Q‘ — Did you learn any thing as to what the bottle contained ? 
^1* — I did not, sir, otherwise than I smelt what I called liquor: I 
could’not tell whether it was whiskey or gin or brandy. 

Q' — You cannot specify the kind of liquor? A. — No, sir, I 
could not. 

Q’ —And could 3*011 sa}’ that it was gin, brandy, or whiske}’? A. 
— I would not say that it was gin, whiske} r , or brandy? 

Q' — Will 3’ou say that it was not lager or ale? A. — I should 
say that it was not. 

Q• -— Are you sure that it was not wine? A. — I could not swear 
to that. 

Q- — Could not make that nice discrimination ? A. — No, sir. 

Q • — How many ladies do you sa}^ were in company with Judge 
Da} r ? A. —Two. 

Q . — Was there more than one bottle there? A. — I think not, 
sir. 

Q . — Did 3 T ou observe whether or not the ladies drank from the 
same bottle that Judge Da3 r did? A. — I think the3 T did. 

Q . —Mr. Marston, is it not 3 r our habit to make very extravagant 
statements in an3 r matter that 3*011 are describing? 

Mr. Boutwell. Mr. Chairman, I shall venture to object to that 
question : I don’t know that it is of any value. 

The Chairman. Pretty broad latitude is allowed in cross-exami¬ 
nation. 

Mr. Boutwell. I won’t object to it if the3 T want to know what 
Mr. Marston thinks of his own habits. 

Q. — I am asking 3*011 whether you are not in the habit of making 
very extravagant statements of matters you undertake to describe. 
A. — I guess that is characteristic of me, to be extravagant. 

Q. (By Mr. King.) —To be earnest? A, — By extravagant, I 
mean earnest. 

Q. (B3* Mr. Gooch.) —Where 3*011 have an opinion about an3 r 
matter, are you not in the habit of expressing it very fully? and 
wouldn’t vou be willing to characterize it yourself as extravagant? 
A. — I don’t know as to that: others would be a better judge that 
know me. 

Q. — In order to test it, sir, haven’t you recently stated that the 
Holy Scriptures were G—d d—d nonsense, and all ministers a 
pack of d—d liars? A. —I don’t think I did, sir, so strong as 
that. I was talking with the judge, coming up in the cars, with 
regard to the Bible, and so forth; and I denounced it pretty strong, 
and the different religions : and the judge agreed with me mostly. 
[Loud laughter.] 

Q. — Didn’t the judge rather reprimand you, sir, for the extrava- 


270 


HEARING —JOSEPH M. DAY. 


[March, 


gant manner in which you made your statement? A. — I think he 
did on the Bible, sir, — I think the Bible: he hung to that closer 
than I did. [Laughter.] 

Q. —Now, sir, didn’t you state, on the other hand, that the minis¬ 
ters were a pack of G—d d—d liars, and Judge Da}' reprimanded 
you for it? A. — No, sir, I don’t think I called them a pack of 
G—d d—d liars: I don’t remember making such a statement as 
that. 

Q. — What did you state ? A. — I think I said they are a nui¬ 
sance, generally speaking, and a block to progress. 

Q. —That is the manner in which you are in the habit of speaking 
where you undertake to express your opinion on any subject, you 
state it in that extravagant manner? A. — I state my opinions as 
well as I can under my conditions of things. 

Q. —That is, you state them earnestly, as you say, emphatically? 
A. —That is so. 

JOSHUA MATTHEW HOWES. Sworn . 

[Testimony taken in 1881.] 

Q. (By Mr. King.) — Where do you reside? A. —Yarmouth, 
Mass. 

Q. —How long have you lived there? A. — Seventeen years. 

Q. — Have you been in business in Boston part of that time? A. 

— All that time. 

Q. —And have you been accustomed to go back and forth in that 
time from Boston to Yarmouth? A. —Yes, sir. 

Q. —Now, I want to call your attention, Mr. Howes, particularly 
to a period, perhaps seven years ago, or about that time as nearly 
as I can state. You observed Judge Day on a passage from Boston 
to Barnstable, — any particular instance? A. —Yes, sir. 

Q. — When there was something particular to be observed ? A. — 
Yes, sir. 

Q. — Now, will you state to the Committee what you saw? Give 
the time as uearly as you can. A. — I should think some seven or 
eight years ago, if I recollect right. It was a Saturday night. I saw 
the judge on the train in company with — 

Q. —I don’t ask you the names of the persons he was with. A. 

— I saw the judge on the train, and he seemed to be having a pretty 
good time. What do you want me to say particularly? 

Q. — Well, if you saw any thing in relation to drinking intoxi¬ 
cating drink, that you will state to the Committee what you saw. A. 

— I saw the judge take a bottle from a satchel or valise, draw a cork, 
and fill a glass, and pass it to the ladies, and also take some himself. 


1882.] 


SENATE —No. 150. 


271 


Q. —What was the condition and appearance of Judge Da} r dur¬ 
ing the passage? A. —Well, I thought that he was feeling very 
good. I thought that he must be under the influence of liquor. 

Mr. Talbot. You may state the facts, but not what you thought 
about it. 

The Witness. The facts were, I saw him take a bottle from a 
satchel, and draw a cork, and pass it to the ladies. 

Mr. King. His judgment at the time, of Judge Day’s condition, 
is entirely competent. 

Mr. Gooch. Let the witness state any thing he saw. 

Witness. That is what I saw. 

Q. (By the Chairman.) — Describe the appearance of Judge Da} r ; 
every thing you saw in his manner and his conduct, which would 
indicate his condition, if his condition was peculiar. A. — Well, he 
appeared to me to be under the influence of intoxicating liquors. 

Q. (By Mr. King.) —Were you able to determine whether or not 
what he turned out from the bottle and drank was intoxicating? A. 
— I was not near enough to tell what it was. 

Q. — State what was the effect, if any, upon the people in the car. 

Mr. Gooch. No. 

Q. — I want you to state the whole circumstances, — what the con¬ 
dition of things in the car was, whether the attention of the people 
in the car was attracted to his conduct. A. —He was the observed 
of all on the car. 

Q .—Their attention attracted to him? I wish you would state. 
A. — Yes, sir, their attention was attracted to the judge, on account 
of the man holding a position of a judge should make such a public 
display". 

Q. — And for how long a time, should you say, was this a matter of 
observation on the train? A. —Well, as long as I was in the car: 
I only stopped there a few moments. 

Q —Were you seated in that car? A. — I couldn’t say whether 
I was seated, or whether I was only passing through. 

Cross-Exam ination . 

Q. (By Mr. Goocii.) —You say you saw Judge Day drink any 
thing he poured from the bottle? A. — Yes, sir. 

Q. — How many times? More than once? A. — No, sir. 

Q. — And you can’t tell how long you were in the car, but think 
you were there only a few moments? A. —I think I was only pass¬ 
ing through the car. 

Q. —I don’t ask you the names; but I ask you, sir, whether 3-011 
knew the ladies who were with him? A. —I did not know at the 
time ; but upon inquiry I found out who they were. 


272 


HEARING —JOSEPH M. DAY. [March, 


Q .—Well, now, sir, knowing the ladies in company with Judge 
Day, if one of them was not the daughter of one of the most re¬ 
spected men on Cape Cod? A. — If I recollect right, they were 
sisters : I think they were sisters. 

Q. — Well, sir, was not one of them the daughter of one of the 
most respected men on Cape Cod? A. — I do not know the father. 

Q. —Do you know the family? A. —No, sir. 

AUGUSTUS S. MESSER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — Where do you live, sir? A. — Boston I call my home. 

Q. —What is your business? A. —Conductor on the Old Colony 
Railroad. 

Q. — How long have } r ou been conductor on that road ? A. — I 
went on in 1872 , and been there since. 

Q. — Have you been accustomed to run on the Cape Cod branch of 
the ro^id? and, if so, for how long a time? A. —I have run between 
here and Provincetown and Woods Holl since 1873 . 

Q. — Do 3*011 know Judge Day of Barnstable? A. —Yes, sir: I 
have met him. 

Q .—How long have 3*011 known him? A. — Well, for several 
years : I could not sa3* exactly. 

Q. — Will you state if 3*011 saw him upon that train at or near 
Cohasset Narrows station a year or two ago? A. —Yes, sir : he has 
been on that train several times, — at that time, before, and since. 

Q. — If you recall any particular instance of Judge Day’s being 
upon that train near Cohasset Narrows, will you state to the Com¬ 
mittee, in the first place, when that was? A. — About two years 
ago, I should judge, as near as I can remember. Mr. Da3 T took my 
train to go to Falmouth,—what we called then Cohasset Narrows, 
and Buzzard’s Ba3 T now. 

Q. — He went aboard 3*our train to go to Falmouth ? A. — Yes, sir. 

Q .—What did you first see? A. — I met him on the platform 
between the two cars. 

Q. — How long was that after the cars left the station ? A. — 
Right awa3 T ; just after the3 7 left. 

Q. —Now, will 3*ou state to the Committee what you saw, and what 
took place between 3011 and Judge Day then? 

The Chairman. The time the witness speaks of was 1879 . 

Q. (B3 r Mr. King.) —Now, Mr. Messer, will 3*011 state to the Com¬ 
mittee what 3 r ou observed of Judge Day? In the first place, state 
when you saw him, — where upon the train. A. — As I left Buz 


1882.] 


SENATE— No. 150. 


273 


zard’s Ba}', going towards Falmouth, I met the judge on the plat¬ 
form, and spoke to him as I generally do, and said, u How are you, 
judge?” I asked him if he had been over to Parker’s. He made 
very strange about Parker’s, and didn’t seem to know what Parker’s 
was. 

Q. — Can 3*011 state what he said? A. —He didn’t seem to know 
what Parker’s was : he didn’t seem to know who I meant by Parker’s. 

Q • — Well, go on. Then what happened? A. —Well, the only 
thing I see then that I remember about was, that he wanted to make 
water. He took hold of the railing, and done his business on the 
platform there between the cars. 

Q.—Was that immediately after you left Cohasset Narrows sta¬ 
tion? A .—Yes, sir. 

Q. — Had he been into the cars at all? A. — I could not say 
whether he had or not. 

Q. — To your knowledge had he been? A. — Not to my knowl¬ 
edge. I could not sav T whether he had or not. I first met him on the 
platform. 

Q .—-What was his condition as to intoxication? Whether or not, 
in 3*0111* judgment, he was under the influence of intoxicating liquors? 

Mr. Burdett. We don’t want his judgment. 

The Chairman, I suppose the witness ma3 r testify whether, in 
his judgment, a person was intoxicated or not, if he saw him. 

Q. (By Mr. King.)—W ill }*ou state whether, in your judgment, 
he was under the influence of intoxicating liquors? A. —At that 
time I judged he was : it was m3* opinion. 

Q. — State whether it was in the daytime? A. —-It was in the 
daytime. 

Q .—Do 3*ou know where Judge Da3 T was going? A .—Well, I 
could not sa3* that he certainly got off at Falmouth; but I had an 
impression he did, or was going there. 

Q — Whether or not he was going to probate court? A. —That 
is the way I understood it at the time. 

Q. — And this, you say, was about how long ago? A .—Well, it 
is not far from two years ago. 

Q, _You said something about Parker’s. What did you mean by 

Parker’s? A. —The man that keeps the hotel there. 

Q. — At Cohasset Narrows station ? A. — Yes, sir. 

Q._And you say this transaction was immediately upon leaving 

the station? A. — Yes, sir. 

Cross-Exciminatio 7 i by Mr. Gooch. 

q, _At what hours in the day do the cars run from Buzzard’s Bay 

to Falmouth? A. —Down in the forenoon, on an average about 
forty minutes past ten, and not far from six in the afternoon. 


274 


HEARING —JOSEPH M. DAY. 


[March, 


Q .—Was this in the forenoon or afternoon? A .— I could not 
sa} T certainly which. 

Q. — You cannot say whether it was the forenoon or afternoon? 
A. — I don’t remember about that. 

Q. — Do you go on both trains, forenoon and afternoon? A. — I 
did at that time. 

Q. — At that time you went on both trains ? A. — Yes, sir. 

Q. —So }’ou would be on the train going up in the morning or 
down in the afternoon? A. —Yes, sir. 

Q. — How man}’ cars were run on that train? A. —I cannot say 
certainty, but I should say we had a baggage-car and smoker and 
passenger-car. That was the train we run a good deal of the time. 

Q. — You cannot say certainly what the cars were on the train at 
that time? A. —No, sir, I could not now. My impression is, that 
there were two cars. 

Q. — You sometimes run with one car there? A. —Yes, sir ; but 
that is in the winter. 

Q. — Late in the season you run one car, after the rush of travel is 
over? A. —Yes, sir. 

Q .—After the Vineyard travel is over, you don’t run generally 
but with one car? A. —Yes, sir: we generally draw a smoker with 
the baggage-car. 

Q. — What time in the season is Vine}’ard travel over? A. — The 
heft of it is over the first week in September, but we run more or less 
cars until October? 

Q. — Isn’t the Vinej^ard travel, as you term it, all over by the 
latter part of October? A. —Yes, sir, the heft of it.' 

Q. — Isn’t it so with regard to making calculation in regard to cars 
for the Vineyard travel after October? A. — Yes, sir, after October. 

Q. —Now, sir, can you state which platform Judge Da } 7 was on? 
A. — On the forward platform. 

Q. —Between the smoking-car and passenger-car? A. — Y r es, sir. 

Q. —It was between the smoking-car and the engine, if there was 
but one car? A. —If there wasn’t but one? But there were two at 
that time. 

Q. — How do you know that there were two at that time ? A. — 
Because I know he was between the platforms of the two cars at 
that time. I came out of one car, and found him on the platform of 
the other. 

Q. — But you cannot tell whether there was more than one car on 
the train at that time? A. — As I said before, there was a bassacre- 
car and smoker, with a regular passenger-car. Whether there was 
more than that, I don’t know. 

Q. —Now, doesn’t the baggage-car make a part of the passenger- 


1882.] 


SENATE—No. 150. 


275 


car? A. — Well, when we are running one car alone, we run such a 
car sometimes very often. 

Q. —You veiy often run such a car, so that the forward end of the 
baggage-car is the passenger-car? A .—Yes, sir, sometimes the 
forward part, and sometimes behind, just which way the car happens 
to be turned. 

Q. —Isn’t that the kind of car 3'ou run over that road, after the 
month of October? A. — Yes, sir: we run that with another car, 
baggage and smoker ; but it is very seldom that— [Witness paused.] 

Q .—That is, the passenger-car you run after October has a bag- 
gage-car in the end of it? A. — Well, on some trains it does, and 
some it doesn’t. Some days we run one, and sometimes another. 
But the} T run such a car with another; that is, most of the time. 

Q. —Well, sir, isn’t that the car the} T usually run at that season 
of the year? A. — I cannot tell. At the time of the Vineyard travel 
they don’t run this car. 

Q .—The} r don’t run that car at the time of the Vineyard travel? 
A. — No, sir. 

Q. — But when there is no Vineyard travel, that is the kind of car 
they run? A. — Yes, sir, they calculate to run it. They calculate 
to run a baggage and smoker with it. 

Q. — What do you mean by “ baggage and smoker with it ” ? A. 
— Well, the baggage-car is divided by a partition, and the rest is a 
smoking-car. 

Q. — But the rest of the time they run a car which has its baggage- 
section in the smoking-car? A.—Yes, sir: they run it together; 
but they very seldom run it alone. I don’t remember when they run 
it- alone. 

Q .—Now, sir, who was there on the car that night, excepting 
Judge Day, that you remember? A .—I could not tell you. I 
don’t remember any one at all. 

Q. — Do you know whether there was anybody on board of the 
car? ^4. — I don’t know of ever going down there without having a 
pretty good load. 

Q, — Can you name us a single person that was on the car? A. — 
No, sir, I cannot. 

Q. _You cannot name a single person who was on board of the 

train ? Now, sir, I want you to fix the season of the year, as nearly 
as possible, w’hen this happened. A. I could not do it. 

Q. _Was it in the year 1879 ? A. — I could not tell you, sir. 

Q. _Was it in the year 1878 ? A. — I should judge it was nearly 

two years ago, — that is all. 

Q, _Can you tell us whether it was in 1878 or 1879 ? A. —No, 

sir. 


i 


276 - HEARING —JOSEPH M. DAY. [March, 

Q. — Cannot 3’ou tell us whether it was 1878 or 1879 ? A .— 
No, sir. 

Q. — And there was nobody on the car that }'ou remember that 
night, that you mentioned this circumstance to? A. —No, sir: I 
don’t remember of any*. 

Mr. Boutwell. He hasn’t said any thing about “that night” 
himself. 

Mr. Gooch. I asked him whether he saw anybody on those cats 
that he mentioned it to. 

The Chairman. lie testified that he could not tell whether it was 
in the forenoon or afternoon. 

Mr. Gooch. I understand that he say’s he — 

The Chairman. I understand that Mr. Boutwell objects to your 
assuming it was in the night. 

Mr. King. He has testified that it was in the da3 T time. 

Mr. Gooch. Oh ! I beg pardon. 

Q, (By Mr. Gooch.) —At that time there was nobody 1, on the car 
to whom y’ou mentioned the circumstance? A. — I don’t remember 
any. 

Q. —Well, sir, to whom did you first mention this circumstance? 
A. —Well, I could not tell you. 

Q .—Can’t you remember anybody you ever mentioned this cir¬ 
cumstance to? Who is the first person you remember, that y’ou 
mentioned it to? A. — I could not tell y*ou that, sir. I didn’t la3 T 
it up at all. I just remembered the circumstance. 

Q. —Who was the first person you remember speaking with about 
it? A. — I could not tell you about it either. 

Q. — Do you remember that anybody ever spoke to y’ou about it? 
A. —Well, I think there has been such a thing mentioned. 

Q. — When? A. — I could not tell you that. 

Q. — As near as you can ? A. — Perhaps within a year. 

Q. — Within a year. Now, sir, make it as much more definite as 
3 t ou can. Fix the time nearer than within a 3 T ear. A. — 1 ain’t good 
on time. These things, when they- come up, I always let them pass. 
I don’t get dates. 

Q. —Well, you say the first time w r as within a year, you think. 
Who was the first person that spoke to you about it within a year? 
A. — I don’t know as I can tell you. 

Q. —You remember you have been spoken to within a year, and 
cannot tell who spoke to you about it? A .— You asked me who 
first spoke to me about it, and I could not tell y’011. I don’t know 
as anybody ever spoke to me about it of their own free will and 
accord. 

Q. — l don’t care any thing about free will. We don’t propose to 


1882.] 


SENATE —No. 150. 


277 


go into the free-will question. The question is, Who first spoke to 
you? A. —I don’t know. 

Q • — Oh, come ! tell us. Yon have been spoken to within a 3*ear? 
A .—I haven’t been approached. If there is anybody mentioned it, 
I mentioned first, perhaps. 

Q • — Well, who did 3*011 mention it to? A. —Well, I don’t re¬ 
member. I believe I spoke to Mr. J. K. Baker about it. If I 
remember aright, he was present when it came up. 

Q .— Well, sir, who did 3*011 next speak to about it? [Counsel 
waited for witness to answer.] Tell us who first spoke to 3*ou about 
this matter? A. — As I said before, I think I was the first one that 
spoke of it. 

Q. — Well, who was the next person after that, that ever spoke to 
3*ou about it? A. — It strikes me I had a little conversation with 
Mr. Harriman. I cannot tell precise^*. 

Q. — About when was that? A. — It was within a 3*ear. 

Q .—Fix it more definitely than that. A. — I cannot fix it more 
definite^ 7 than that. 

Q. —Was it within six months? A. — I should sa3 r it was. 

Q. —Well, sir, within four months? A. — I guess it was. 

Q .—Within three months? A. [After pausing to think.]—I 
might call it three months. I won’t call it aii3* less than that. I 
have been away. 

Q. —I want you to call it just what it is. A. —I could not state 
that. I have been away for the last two months. 

Q. — You have been absent for the last two months? A. —Yes, 

* 

sir. 

Q .—When the cars reached Buzzard’s Ba3 T , the last train up, 
when there are but two trains a day in November, is it night or 
da3*? dark or light? A .—The cars coming up from the Cape? 

Q. —Yes, sir : the train 3*ou say Judge Day went up on? A. — I 
should say it was light. 

Q. — In November? A. — I could not tell exactly, without a time¬ 
table. We change time. I could not keep the run of it without a 
table. 

Q. — When the last train goes from Buzzard’s Ba3 T to Falmouth, 
about the middle of November, is it daylight* or dark? A. — I 
should have to look at the almanac to tell that. 

Q. —Can you fix the time? A. — Well, not far from six o’clock. 

Q. —Then, about six o’clock is the time that the cars would start 
to go up from Buzzard’s Bay to Falmouth? A. —^ es, sir. 

Q. — Has anybody written to you in relation to this matter? A. — 
No, sir, there has not. 

Q. —You have had no letters? A. —No, sir. 


278 


HEARING —JOSEPH M. DAY. [March, 


Q. (Bj’ Mr. Burdett.) —Allow me to fix one tiling a little more 
clearly than it now lies in my mind. You say yon never run this car, 
which is part baggage and part passenger, alone? A. — Well, there s 
has been such a thing done. 

Q. —It isn’t customary ? A. — No, sir. 

Q .—When 3’ou divide it off, you run it with a smoker? A .— 
Well, sometimes. It is according to the season of the } r ear about 
that. 

Q. —Now, won’t you repeat what 3'ou said about that, in regard to 
running the two cars? What is the character of the two cars, and 
when you run them ? A. — It is according to the season and time of 
the year. 

Q. — Suppose it was November? A. — Well, I should sa} T that in 
November it would be a passenger with a compartment in it, and a 
baggage and smoker. We calculate to run two cars the year round. 

Q. — Then, the smoker would be next the engine? A. — Yes, sir. 

Q. — And the compartment of that would be this car divided into 
two parts, — baggage-car and smoker? A .—Yes, sir. 

Q .—And of course part of the time the baggage-car would be 
next to the smoker, and part of the time the passenger-car would be 
next the smoker? A. —Yes, sir: according to how the passenger- 
car happened to be turned. 

Q. —Now this part in the baggage-room is sometimes used as a 
smoker. A. —Yes, sir. 

Mr. King. — I don’t care to interpose any objection ; but it doesn’t 
seem right for one man to exhaust himself, and then another one to 
take his place, examining the witness. 

The Chairman. It is a rule in the Superior Court, but a matter of 
discretion here. 

Mr. Burdett. I only wanted to get it clear in mv mind. I want 
to ask if Mr. Thacher was on the train at the same time. 

Witness. I could not sa} T , sir, as to that. 

ELEAZER NICKERSON. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — Where do you live ? A. — South Dennis. 

Q. —Were you administrator of the estate of Seth T. Nickerson? 
A. — I was, sir. 

Mr. Burdett. I suppose this is all admitted by our answer. We 
make no objection. 

Q. (By Mr. King.) —Did you, as administrator, have a suit in 
the United States Court? A. —Yes, sir. 


1882.] 


SENATE —No. 150. 


279 


Q' —In relation to the “ Benjamin English”? A. —Yes, sir. 

Q- — Did you employ counsel to act for you? A. — I employed 
one to act for the estate. 

Q. — Who was that? A. —Judge Da}'. 

Q . — And he acted for the estate, did he? A. —Yes, sir. 

Q. — In that admiralty suit? A. —Yes, sir. 

Q. —Did you pa}' him for it? A. — Yes, sir. 

Q. — How much ? A. — Thirty-five dollars. 

Q. — Was that all? A. —Yes, sir. 

Q. —Now, let me ask you if that thirty-five dollars that you paid 
him appeared in the order of distribution? 

Q. (By Mr. King.) —So this thirty-five dollars in the order of 
distribution, you paid him for services in that case? A. — Yes, sir. 
I would like to state the circumstances under which Judge Day went. 
Mr. Marston was acting as district-attorney in Bristol County, and 
Mr. Harriman was gone away; and Judge Day, living in a sea¬ 
faring community, and being acquainted with the parties, he went 
on behalf of the creditors, with no other object in view only for the 
benefit of the creditors. Mr. King was attorney on the other side, 
and libelled the vessel. Judge Day went, and I paid him. Those 
are the circumstances under which he went. 


JONATHAN HIGGINS. Recalled . 

[Testimony taken in 1881.] 

Direct Examination by Mr. King. 

Q. — Mr. Higgins, you were register at the time of Noble P. 
Swift’s proceedings in insolvency? 

The Witness. Mr. Chairman, may I look at the docket, and re¬ 
fresh my mind a little about that case? 

The Chairman. If there is any occasion to do so, you may. 

The Witness. At the same time, Mr. Chairman, I would like to 
see the papers in the case. 

The Chairman. Very well: if any questions are put to you 
about it, you will have an opportunity. [The papers were produced 
by Mr. Thacher.] 

Q. — Whether you were sitting as register in the court during the 
progress of that case? A. — 1 think at every meeting. 

Q. — Do you remember when notes were proved against Noble P. 
Swift’s estate at the time when Mr. Marston was present? A. — I do. 

Q. — What, then, will you say as to your recollection of the edges 
of the notes presented in court lor proof ? A. — Mr. Marston called 
my attention to that fact, — that is, as he claimed, that the notes, 
some of the notes, were written with the same ink and the same 


280 


HEARING —JOSEPH M. DAY. [March, 


paper, — and put the edges of the notes together, and called my 
attention to the fact that the}’ had been separated from the same 
paper. The notes were written upon the same piece of paper, and 
torn apart. He put the edges together, and called my attention to 
it at the time. It was a very unusual circumstance, and impressed 
me very forcibly. That is why I remember it. 

Q. —Then, there were several of the notes which were called to 
your attention at the time, Mr. Higgins, with torn edges? A. — 
Yes, sir. 

Mr. Burdett. Well, he has not said that yet. That is just what 
he has not said. 

The Chairman. I understand him to say that they had been torn 
apart. 

Q. —Whether or not they had been torn apart? A. —They had, 
and they perfectly fitted. The ragged edges fitted together precisely. 

Q. — And was that fact— State whether that fact was called to 
the attention of the judge. A. — It was. 

Q. — Now I \vant to ask you to state whether or not the notes 
which are now produced here have the appearance which the notes 
had of which you have spoken,—if you will look at them,—as to 
their edges. A. — After inspecting the notes, they are very different. 

Q. — (By Mr. Burdett.) — What is that? A. — They are very 
different. 

Q. (By Mr. King.)— In that they were parallel? A. — In that 
the edges of these notes are cut, and the corner cut off, which was 
not so with the notes that Mr. Marston took from the papers at the 
meeting, and applied the edges together, so that you could see the 
fitting of the ragged edge of one into the ragged edge of the other. 

Q. — Now, Mr. Higgins, will you state whether, some time about 
two years ago, at Barnstable, Charles Thacher, who has testified here, 
made a statement to you with reference to Judge Day’s condition at 
Falmouth? and, if so, will you state to the Committee what he said? 
A. — He did. 

Q. —What did he say? A. — He stated to me, that, he was so 
drunk when they got out at Plymouth, he had to help him into a 
carriage, and instead of driving to the hotel where they were to hold 
their court, or to where they could stop, he was carried to a friend’s 
house in the night. 

Q. (By Mr. King.) —Did you state when and where this state¬ 
ment was made to you? A. — It was in the probate office. 

Q. — At Barnstable ? A. — At Barnsthble. 

Cross-Examination by Mr. Burdett. 

Q. — Do you know what Mr. Thacher’s condition was at the time? 
A. — In what respect? 


1882.] 


SENATE —No. 150. 


281 


Q. — Was he under the influence of liquor? A. — Not at all: that 

is, I have no evidence of it. He was very close to me, and I am 
very sensitive to a man’s breath who smokes and drinks and chews 
tobacco. 

Mr. Burdett. Yes, sir : we have all found that out. 

Q • — Were those papers in your possession after they were filed in 
the probate court, — in the court of insolvency? A. — In my pos¬ 
session? Yes, sir: they were in the files of papers. 

Q • — And you had charge of those papers? A. —Yes, sir. 

Q • — How many years after that case was in court? A. — After 
the case was in court? The case was entered in 1867 ; and I was 
register, Mr. Chairman, until the expiration of the year 1873 ; and 
those papers, I suppose, would be considered in my custody as 
register of the court of probate and insolvency. They were filed there, 
I suppose, at the close of the case; and I do not think I have ever 
seen them since. 

Q. —Precisely. I do not suppose you have seen them since. 
A. — No, sir, I have not. 

Q. — After a case is discharged, and the man has received his dis¬ 
charge in insolvency, the papers are then done up in a bundle, and 
labelled and put away, and ought to be left in their place undisturbed : 
ought they not? A. — Yes, sir: that is the form just as I used to 
put up papers in a case. Every case was filed, with a band around 

it. I think — 

Q. — How do you know whether or not those corners were cut off 
of the notes at the time of the proceedings, and these initials and 
figures were put on there to identify them? A. — These notes — 

Q. — Will 3011 answer that question? A .—The corners were not 
cut off when Mr. Marston called my attention to them. 

Q. — Do you know whether they were cut off subsequent to that 
time? A. —I do not know. sir. I only know they are off now, and 
I never saw them before in that condition. 

Q. —Do you know what these letters mean — 44 W. S., 1,500 ” — 
on that note? A. —No, I do not. 

Q. — 44 H. C., 1,000” ? A. — No, sir. 

Q. — You do not know when that was put on ? A. — No, sir. 

Q. —Or wh} r they were put on the notes? A. —No, sir. 

Q. —And you see that they are written right along above the clip¬ 
ping? A. — I do. 

Q. — How rough were the corners? A. —Not very rough, but 
sufficiently to know that both came from the same piece of paper. 

Q. — Well, it was not a very pronounced, irregular tear, was it? 
A. —No, sir, ordinary. 

Q. — Was it not as if some one had taken a full sheet of paper and 


282 HEARING —JOSEPH M. DAY. [March, 

opened the leaves, and then torn it down ? A. — I would not say as 
to that. 

Q. — It might have been done with a cutter? A. — It might have 
been done with a cutter, or it might have been torn by a crease or 
fold. 

Q. — And it was the ordinary tear that a crease or fold or paper- 
cutter would leave? A. — Yes, sir. 

Q .— You do not mean to say that there was an irregular line run¬ 
ning diagonally across? A. — No, sir: simply an ordinary little 
ragged edge that required care to put it together. 

Q. — Precisely as though two leaves were torn apart, and the paper 
had been used in that shape? A. —Yes, sir. 

Q. — Can 3*011 identify any of these notes .that you think w*ere not 
in the same condition at the time Mr. Marston showed them to you? 
A. — I should say those that had the corners cut — that those two 
[indicating them] were the same ones. 

Q. — Now, do you remember the filing of that paper [presenting it] 
which is among the papers in that case? A. —I do not remember of 
that paper. 

Mr. Burdett. Well, here is a paper which is in that file of papers, 
and I desire to read it. It is indorsed, “ Motion to have notes re¬ 
main impounded on file.” 

“ Barnstable, ss. In Insolvency. 

“ In the matter of Noble P. Swift, insolvent debtor, Emily llarrison, creditor 
of said Swift, w r ho has proved her claim in said case, moves the court that the 
notes of Hiram Crowell, William Swift, and George Nye alias George B. Nye, 
may remain in file, and be impounded in said case. 

“ Nov. 11, 1867. 

“EMILY HARRISON, 

“ By George A. King.” 

Q. — In whose handwriting is that, if you know? A. — I should 
call it George Marston’s. 

Q. — Now, do you know whether the clipping of those corners, and 
the putting on of initials, had any thing to do with the impounding of 
those notes? A .— I do not. 

Q. — Now, Mr. Higgins, this third note on the double sheet of 
paper: do you notice that the edge of that has been clipped in the 
same wav? A. — Yes, sir. 

Q. — Do you see the indorsement down near the clipping? A. _ 

I do. 

Q. — What is it? A. — I should call it “ G. N.” 

Q. —What? A. — “ G. N. ; ” and the figures are “ 2,500.” 

Q. —Can j^ou tell whose handwriting that “ G. N., 2,500,” as you 
think it is, is in? A. — No, sir, I could not. I don’t know. 


1882.] . 


SENATE —No. 150. 


283 


Q. — Can you tell ? A. — No, sir. 

Q •—Can you say whether or not it is Mr. George Marston’s? 
Does it look like it? A. — I should not have called it so. 

Q • — “ G. N.” are the initials of the person to whom that note is 
payable, George Nye? A. —Yes, sir. 

Q • —Now, do 3 ’ou know the handwriting in which these other let¬ 
ters and figures are, just above the clippings on the other two notes? 
A. — Well, I could not say from these initial letters. 

Q • — Whose do you think it is? A. — I could not say in whose 
handwriting those initials were. 

Q. — Can you give us your best opinion in regard to the hand¬ 
writing of those little indorsements near the clippings of those notes? 
A. —No, sir, I could not: the}- are not sufficient. 

Q. — Well, let me ask you whether you do not think that the ini¬ 
tials, and the figures near the clippings on these two notes, are in the 
handwriting of George A. King? A .—I could not say. That W 
•might resemble the way he sometimes makes a W. The S I am in 
doubt about: I should not sa} T it was. The “ H. C.,” certainty I 
cannot sa 3 T . 

Q .—You cannot identif 3 ’ those as in Mr. King’s handwriting? 
A. —No, sir. 

Q . — Or the other one as being indorsed by Mr. Marston? A .— 
Let me see the other one. 

Mr. Burdett. We would like in some wa 3 T to be able to prove 
that. I do not know as we can, unless it is admitted b 3 T the other 
side. 

The Witness. I could not say. 

Mr. Burdett (to Mr. King). Do 3 T ou recognize that as your 
signature ? 

Mr. King. I do not say an3 T thing about it. 

Mr. Burdett. We will find some wa 3 r if we can. 

The Chairman. The witness has testified that he cannot. 

Mr. Burdett. I know that he cannot; but we will see if we can¬ 
not find somebody else. 

The Witness. I would explain, Mr. Chairman, that the only 
thing that I think Judge Marston called nry attention to was the 
ragged edges, and the fitting of the two papers together. 

The Chairman. We understand that. 

The Witness. What was done with the notes, I do not understand. 


284 


HEARING —JOSEPH M. DAY. [March, 


CHARLES G. RODMAN. Sworn. 

Direct Examination by Mr. Wadleigh. 

Q. — Mr. Rodman, did you make application to Judge Day in 1861 
for a place upon a light-boat? A. — I did. 

Q. — Was that when Judge Da}’ was collector of that district? 
A. — Yes, sir. 

Q. — Now, you state all that occurred at that time, when you first 
made application. 

Mr. Burdett. You are referring to something that Judge Day 
did? 

Mr. Wadleigh. To the matter under Charge Nine. 

Witness. I went over to Barnstable with a friend of mine, Squire 
Steele of Harwich. 1 had a petition for a light-ship ; and Judge Day 
received it, and said it was a very good petition, and he would look it 
over, and think about it. Then Squire Steele and Mr. Day had 
some talk together in private: and I went home, and left the thing in 
his hands for consideration ; and he was to inform me what the result 
would be. Going home with him, Steele told me — 

Mr. Thompson. Stop, stop. 

Mr. Burdett. We object. 

Mr. Wadleigh. State what Mr. Steele said to you. 

Mr. Thompson. I object until the Chairman rules on it. 

Question excluded. 

The Chairman. The petitioners’ testimony is all in except the evi¬ 
dence of Charles G. Rodman, with one or tw r o other witnesses on 
a matter of intoxication, and David Bursley’s deposition. Are you 
ready to proceed, Mr. Burdett, with your witnesses? 

THE CASE FOR THE REMONSTRANTS. 

Five witnesses were then called fomvard and sworn. 

CHARLES TIIACHER, 2d. Sworn. 

Direct Examination by Mr. Burdett. 

Q. — Your full name, sir. A. -— Charles Thacher, 2d. 

Q. — You were formerly register of probate in Barnstable? A. — 
Yes, sir. 

Q. — Where do you reside ? A. — Yarmouthport. 

Q. — Have you any recollection of a case, the Goodspeed, so 
called, in the probate court in which Mrs. Goodspeed was adminis¬ 
tratrix of the estate of her husband, and in which there were one or 
two children, minors, under guardianship? A. —Yes, sir. 


1882.] 


SENATE —No. 150. 


285 


Q. — Do 3*ou know whether there were consultations between the 
parties interested and Judge Day at various times? A. — Yes, sir. 

Q. — Do you know whether there were any controversies between 
the parties and one Proctor, arising out of this matter? A. —Yes, 
sir: 1 heard them in the probate office in relation to the matter. 

Q .— An agreement has been referred to in the testimon}* for the 
petitioners, — an agreement drawn up, as I remember it, between 
Col. Proctor and Mrs. Goodspeed. Do }*ou know any thing in rela¬ 
tion to that agreement? A. —I know there was such an agreement 
drawn up in the court there. 

Q. —Do 3*0u know who drew it up? A. —Yes, sir. 

Q. — Who w r as it? A. — Judge Da)*. 

Q. —Who made the cop) 7 ? A. —I did. I think I remember that 
I made one cop3*; but wdiether Mrs. Norris made the other, I do not 
know. There were three copies made. 

Q. — Were 3*011 paid for making a cop3*? A. —Yes, sir. 

Q .— Did Judge Da3* say airy thing about the copies, and paying 
for them? A. — Yes, sir. 

Q. — What did you hear him say? A. — I heard him say some¬ 
thing about his handwriting being illegible, and that Mr. Thacher 
would have to have a cop3 T made, and pay him. 

Q. — Pay whom ? A. — Me for it. 

Q. — Did he say any thing in relation to paying him, Judge Day, 
do 3*ou remember? A. —Not that I remember : no. sir. 

Q. — So you were paid ? A. —l r es, sir, I was paid : I don’t think 
I was paid at that time. 

Q. — Who paid you ? A. — I think I was paid by two or three 
different parties. I can’t say whether I was paid by three, or whether 
Mr. Whitman— I think he paid me a dollar, and Mrs. Goodspeed 
one ; and I don’t recollect whether Charles paid the other, or not. I 
think I got three dollars for the three copies. 

q. _Did you hear any thing said during* the conferences between 

the GoodspeeJs, Col. Proctor, and Judge Day in relation to counsel? 
A. — Y^es, sir. 

Q, _Did you hear Judge Day say any thing to Col. Proctor or 

Mrs. Goodspeed, or any of them, as to whether or not he was acting 
as counsel for any of the party? and, if so, what? A. — The only 
thing I recall about that distinctly, or, in fact, at all that I remember 
now, was that Judge Day told them they would have to procure coun¬ 
sel. There was some other talk going on there, but what it was I 

can’t say. 

q, _Did you hear Judge Day say that more than once, that you 

remember? A. — Yes, sir, I think he did ; but I won’t be positive. 

q. _Was there any thing said by Judge Day, to your knowledge, 


286 


HEARING — JOSEPH M. DAY. [March, 


as to whether or not he was to receive any pay for what he had done 
in relation to that agreement, or making it? A. — Yes, sir. 

Q. — Well, state it. A. — What conversation took place in rela¬ 
tion to the matter, I cannot say ; but I heard Mr. Day say he had no 
charge for making and drawing the contract, but Mr. Thaclier must 
be paid for making the copies. 

Q. —Now, Mr. Thaclier, how long were you register of probate? 
A. —Upwards of seven years, —seven years and some months. 

Q. — Mr. Thacher, do you know whether Judge Day has, or was 
during your holding the office of register, consulted frequently or not 
by executors, administrators, and guardians? A. —Yes, sir. 

Q. —Now, do you know whether Judge Da}’ has ever been offered 
pay for the advice given — 

Mr. Wadleigh. Wait a moment. 

♦ 

Q. (By Ml*. Burdett.) — Do you know whether Judge Day has 
ever been offered pay for the advice so given? and, if he has, whether 
or not he has accepted or rejected it? and, if so, how many times? 

The question was ruled out. 

Q. (By Mr. Burdett.) — Mr. Thacher, have you ever taken pains 
to ascertain how man} 7 , or about how many, cases have passed under 
Judge Day’s jurisdiction according to the records of that court? 

Mr. Wadleigh. We object to that. 

Mr. Burdett. I offer the question. 

The Chairman. I think, Mr. Burdett, the Committee feel that the 
question ought to be excluded. 

Cross-Examination . 

Q. (By Mr. Wadleigh.) —Mr. Thacher, the agreement between 
Col. Proctor and the Goodspeeds was drawn by Judge Day, was it 
not? A. — The original, I think, was drawn by him. I can’t say ; 
but I think it was. It was in his handwriting. Whether he originated 
it or not, I don’t know. 

Q. —And he gave as a reason for your making the copies, that his 
hand was not an easy one to read, illegible, you think? A .—Yes, 
sir. Not altogether : he added to that. 

Q. — What did he add? A. —That it had been interlined ; many 
interlineations in it. 

Q. —Is that his handwriting in this agreement? the interlineations 
there? A. — I should say it was, sir, so far as my knowledge of 
handwriting is concerned. * 

Q. — Now, you said he told them that they must get counsel? A. 
— Yes, sir. 

Q. — Was Mr. Proctor present at that time? A. — I can’t swear, 
sir ; but I think he was. 


1882.] SENATE—No. 150. 287 

Q- lou think he was? A .— I think he was; but I can’t swear 
to it. 

Q‘ — At that time was Mr. Proctor accusing Judge Day of acting 
as their counsel? A. —Not to mv knowledge. 

Q • — Didn’t you ever hear him? A. —No, sir, not to m3’ knowl¬ 
edge. 

Q- — Did 3’ou keep a cash-docket, while }’ou were register? A. — 
No, sir, no: I kept a sort of memorandum-book, a little pass-book 
of charges. 

Q • — You didn’t keep any cash-docket, as the law requires? A. — 
No, sir, I think not, if )’ou mean b}" cash-docket — 

Q •—Public docket, open to the inspection of the public? A .— 
No, sir,—3'es, that memorandum-book that I had was open to the 
inspection of the public. 

Q •—Have 3’ou got that memorandum-book? A .—I haven’t it 
with me. 

Q . —What became of it? A. —I have it at home. 

Q .—Did 3’ou carry it home? A. —Yes, sir: it was nothing but 
the charges paid. 

Q. —The public docket that was required b3’ law? A. — Yes. I 
have got the docket of the insolvenc3’ court, and also the docket of 
the cases entered, and cash received. 

Q. —So 3’ou didn’t keep an3’cash-docket? A. — I don’t know 
now whether I kept a cash-docket: no, sir, I think not. 

Q. — Was this book that 3’ou kept, a little book, a memorandum- 
book? A. —Yes, sir: a small pass-book, as we call it. 

Q. — And that you took when 3’ou left the office ? A. — I took 
that with me. 

Q. —How long did 3 r ou carry that? A. — I couldn’t tell you, sir. 

Q. — What was there in it, if an3 T thing, besides what you have 
named? A. —Oh ! various entries of charges. 

Q. —Your private affairs? A. — Yes, sir. 

Q. — Then, that was 3’our private memorandum-book, was it? 
A. — Yes, sir. 

Re-direct . 

Q (B3 r Mr. Burdett.) —Did you keep a book larger than the one 
3’ou have spoken of, perhaps as large as this sheet of paper— [show- 
ing] —a thin book, but such as you keep in the probate office, for the 
probate docket? A. —Yes, sir. 

Q. —On that book did you enter fees received in insolvency cases? 
A. — Yes, sir. 

Q .— And was that open for the inspection of the public, or an3’- 
body that wanted to look at it? A. — Yes, sir: while it was there. 

Q .—Did you take that home with 3’ou? A. —Yes, sir: I took 
that home. 


288 


HEARING — JOSEPH M. DAY. 


[March, 


Q. — Did it show the amount of cash received in insolvency cases? 
A. —Yes, sir: it showed $40 in each case so far as I received it. 

Q. — So that any one consulting that book would get at the fees 
you received in those cases? A. — Yes, sir. 

Q. (By the Chairman.) —Where did you keep that book, Mr. 
Thacker? A. —I kept it in my desk at the probate office. 

Q. — Was it where the public could get at it without asking you 
for it? A. — No, sir: it wasn’t in the rack where we usually kept 
it, — where the records are kept. It was in the desk : all might see 
the charges at any time by inquiring of me. 

Q. Mr. Wadleigh.) —Did you have in book a statement of 
what you had paid out on those cases? A. —Yes, sir: on the other 
side, of the various meetings and charges. 

Q. —And did you make your returns to the treasurer? A. — Yes, 
sir. 

Q. — Of the cash received b} T you? A. —Yes, sir. 

Q. — How often? A. — Once in three months, I think it was. 

Q .—How many returns did }’ou ever make? A .—I never made 
but two. I was remiss in that. 

Q. — When were those made? A. — I couldn’t tell you now when 
the}’ were made. 

Q. —Can’t you tell whether they were made towards the beginning 
of the period when you had to make them? A. — Yes, sir: some¬ 
where there. 

Q . — What is the reason you didn’t continue to make them ? A. — 
I don’t know, sir, why I didn’t. 

Q. —A113’ reason for it? A. —No, sir : I don’t know as I had an}' 
reason for it. 

ELIZABETH C. NORRIS. Sworn. 

Direct Examination by Mr. Burdett. 

Q .—What is your full name, Mrs. Norris? A. — Elizabeth C. 
Norris. 

Q. — What is your employment ? A. — Copyist of the court-house. 

Q — Where ? A. — At Barnstable. 

Q. — In the registry of probate, or registry of deeds ? A . — I am 
not in either of those offices at the present time. 

Q — You were formerly copyist in the probate office? A. — Yes, 
sir. 

Q. — How long were you in that capacity ? A. — About ten years. 

Q. —Was your work done in the same room that much of the pro¬ 
bate business is transacted, or not? A. — It was, up to last October. 

Q .—And what was that room? registry of probate? A. —Yes, 
sir. 


1882.] 


SENATE —No. 150. 


289 


Q • — Where the courts are held, too? A. — Yes, sir. 

Q- — And how about the consultation of parties with Judge Day? 
is that the room? A. —Yes, sir. 

Q •—Now, do you remember the case of the Goodspeeds, where 
Mrs. Goodspeed was administratrix, with one or two children under 
guardianship? A. — I do, sir. 

Q • — And you remember Col. Proctor? A. —Yes, sir. 

Q • — Were you present during anj T consultations or interviews be¬ 
tween those persons and Judge Day? A. — Yes, sir. 

Q- — Have }’ou any idea how often }'ou have been present at such 
interviews ? A. — Several times. 

Q . — Do } 7 ou remember what the year was? A. —Yes, sir. 

Q . —What was it? A. — 1880, summer of ’80. 

Q • —And how late into the 3’ear did these consultations extend? 
A. — I think nearly through the summer. 

Q. — Do 3’ou know whether there was an3 T trouble between Col. 
Proctor and the other parties? A. —Yes, sir : I think there was. 

Q. — During an3~ of those interviews did you hear an3 7 thing said 
b3 r anybody about counsel? A .—Yes, sir. 

Q. — Will 3'ou tell what 3*011 heard? A. — I heard Judge Da3 T say 
it was veiy necessaiy for them to have counsel. He said it was to 
relieve him from the transactions that he had to go through with them. 
He felt that he must be relieved out of it. 

Q. — Do 3’ou recall an3 7 thing else that was said upon this subject, 
an3 r specific thing? and, if not, do 3 r ou remember any thing ever hav¬ 
ing been said by Col. Proctor upon this subject? A .—I don’t 
know about Col. Proctor. 

Q. —How man3 T times, or about how man3* times, have 3011 heard 
Judge Da3’ during those consultations sa3 T any thing in relation to 
hiring counsel? A. —I could not sa3 T how man3 T times ; but I heard 
him sa3 T a number of times that he wished they would employ 
counsel. 

Q. — Do 3 7 ou remember an3 T thing about this agreement that has 
been testified to this morning? A. — Yes, sir: I knew there was 
one. 

Q. — Did you hear Judge T>ay say an3^ thing about paying for it? 
A. —Yes, sir. 

Q. — What did 3'ou hear said? A. — Well, he asked — he told 
them that the3 7 must make a cop3 T of the agreement, as he drew it, 
and pay the register: let the register make copies, and pay him ; 
for he made no charge whatever of it. 

Q .—Did you hear Judge Da3' say any thing to Mr. Proctor di¬ 
rectly, do you remember? A. — I don’t remember. 

Q. (By Mr. Thompson.)— Whether or not you heard Judge 
Day say in substance to Mr. Proctor that he wasn’t acting — 


290 


HEARING — JOSEPH M. DAY. [March, 


The Chairman. Let her testify. 

Q. (By Mr. Thompson.)—W ere you present when Judge Day 
and Mr. Proctor were present? A. —Yes, sir. 

Q .— How many times were 3*011 present? A. —Two or three 
times. 

Q. — When Col. Proctor was there? A. —Yes, sir. 

Q. — Was there, or not, conversation in your presence between 
Col. Proctor and Judge Da}*? A. — I cannot remember exactly 
about that. 

Q. — Don’t remember whether Col. Proctor took an } 7 part in the 
conversation or not? A. —Yes : they were all talking. 

Q .— Now, what I wish to ask you is, whether or not you heard 
Judge Day say to — 

The Chairman. I do not think you have reached the point yet. 

Q. (By Mr. Thompson.)—D o you remember any conversations 
while Col. Proctor was present? A. — I recollect that he told them 
they must get counsel. 

Q .—And that was when Col. Proctor w*as present? A. — Yes, 
sir. 

Q. — Now, whether or not you heard Judge Day say, in substance, 
to Col. Proctor, “I am not counsel for these parties: I am only 
acting foi^the protection of the widow and orphans, as I always do 
w*hen they haven’t any counsel,” in substance that? A. — Yes: I 
heard him say it. 

Q. (By the Chairman.)—S tate what you heard him say. A. — 
I heard him say that he did that for them ; that he would do it for any 
one, for widows and orphans that didn’t have counsel. 

Q. —That is the substance of what he said? A. — Yes, sir. 

lie-cross Examination. 

Q. (By Mr. Harriman.) —You testified in Judge Day’s favor last 
year? A. — I did : yes, sir. 

Q. — You profess a good deal of friendship for him in these mat¬ 
ters? A. — I do not feel that I am biassed in any way. 

Q. — You express a very friendly feeling for him in this matter? 
A. — I do. 

« 

Q. — And you made the statement last year to various parties that 
you wasn’t going to say any thing to hurt Judge Day? A. — I don’t 
remember ever saying any thing about Judge Day. 

Q. — You made the statement that you never saw any one faint, 
didn’t you? A. — I never saw any one faint. 

Q. — Wasn’t you present when Mrs. Clarissa Nickerson fainted? 
A. — No, sir. 

Q. — How many years have you had an office in that court? A. — 


1882.] 


291 


SENATE —No. 150 . 

% 

Ten years,— ten years this March up to last October; that is, up to 
the sixth day of this March. 

Q •—You and Mr. Thacher were very intimate together? A .— 
No more than that he used to assist me in my work: that was all. 

Q • —And you sat at the same desk with him, side by side? A. — 
Yes, sir. 

Q •—And when he left the office as register, and Mr. Lothrop 
came, then you took another room? A . —Yes, sir. 

Q •—Now, while you were there, attending to your work, did you 
have any particular interest in this Goodspeed matter? A. —I could 
not help but hear what was going on there. 

Q . — Did you stop your work to listen to what was going on? A, 
— I don’t know as I did. It was close by me. 

Q. — Did you stop your work to listen, I ask? A. —No, sir. 

Q. — Can you usually hear and remember every thing going on in 
the office while attending your work? A. — Some things I can. 

Q. — What do you mean by “some things”? A. — Why, any 
thing that happens to strike me I remember: I can’t help it no more 
than an } 7 thing else. 

Q. — Had any conversation with any one with regard to what you 
testified to to-day? A. —No, sir. 

Q. — No one spoke to you about it? A. — No, sir. 

Q. —Not even Mr. Burdett? A. — What I said to Mr. Burdett 
was very slight, very little. 

Q. — Judge Day never speak to you about it? A. — I never saw 
him but a moment. 

Q. — I mean previously, not to-day, as to any thing that took 
place in the Goodspeed matter? A. —He asked me if I remembered 
any thing about it. 

Q. — When was that ? A. — A little while ago. 

Q. (By the Chairman.) — Did he ask you if you remembered sa}> 
ing these things that have been asked you? A. — No, sir, he didn’t. 

Q. (By Mr. Harriman.) — What was your business in the probate 
office with Thacher? — you had no particular business there except¬ 
ing exchanging work with him, had you? A. —No, sir : he allowed 
me to sit in the office at work there — 

Q .—Your business was indexing? A. — Yes, sir. 

Q. —And you helped him in the probate business, and he helped 
you on the indexes? A. —Yes, sir. 


292 


HEARING —JOSEPH M. DAY. [March, 


JOSIAH B. WHITMAN. Sworn. 

Direct Examination by Mr. Burdett. 

Q. —Your full name? A. —Josiah B. Whitman. 

Q. —Where do you reside? A. —West Barnstable. 

Q. — Were you the guardian of George M. Good speed ? A. — No, 
sir. 

Q. — Of Charles ? A. — Charles F. Goodspeed. 

Q. — And how long ago were you his guardian? A. — From Dec. 
9 , 1879 , until Jan. 3 , present year. 

Q .— Were you present at the court-house in Barnstable at an}' 
time or times when there was a discussion by parties interested in 
the Goodspeed matter with one Proctor? A. — I was, sir, but not 
always. 

Q. — How many times? A. —I can’t tell you the number. 

Q. — More than once ? A. — Yes, sir. 

Q. — Was there any thing said there, to your recollection, in rela¬ 
tion to counsel for an}' parties? and, if so, what? A. — Yes, sir: I 
heard Judge Day several times tell us we had better obtain counsel; 
and finally he told us we must obtain counsel, as the things were 
becoming annoying to him. 

Q .—Do you remember his saying anything to Col. Proctor, or 
Proctor to him, about this subject? A. —Yes, sir. 

Q .—What was it? A. — I heard Mr. Proctor ask him if he was 
counsel for the Goodspeeds. He said, very emphatically, “No: I 
am here to look after the interests of the widow and orphans, and 
I will do so so long as God gives me breath.” Those were his words, 
as I remember. 

Q. — Did you employ Judge Day as counsel in any way on this 
case? A. — Never, sir. 

Q. — Pay him any money as such? A. — Never, sir. 

Cross-Examination. 

Q. (By Mr. Harriman.) —How long was this controversy going 
on with Col. Proctor over the sale of this property? A. — This con¬ 
troversy was going on from June 30 up towards the last of the sum¬ 
mer. I cannot exactly remember. 

Q. — Who did you employ as counsel to look after the interest of 
your ward? A. — Never employed any one, sir. 

Q . — Did you have counsel from any other parties, or advice in 
relation to the matters with Col. Proctor, except what Judge Day 
gave you with the others? A. — I had none, sir. 

Q. —But Judge Day did advise you more or less as to what to do 


1882.] 


SENATE —No. 150. 


293 


in the matter, didn’t he? A .— No, sir: I don’t remember that he 
ever advised me on the subject. 

Q • — What were you there for, in the office of the judge? A. — 
To try to bring Col. Proctor to terms. 

Q • — And you conferred with Judge Day? A. —No, sir. 

Q -—What did 3011 meet at the probate office for, unless Judge 
Day had something to do with the matter? A. — I don’t know. 

Q‘ — But 3'ou did meet several times ? A. — Yes : in the presence 
of Judge Day. 

—And he gave 3 011 advice as to what to do with Proctor, and 
to tender the deeds? A. —I don’t remember. 

Q • — This conversation took place in Judge Day’s presence, didn’t 
it? A. — I don’t know that it alwaj’s did: I wasn’t alwa} T s present 
myself. 

Q- — At the time you went to Barnstable, wasn’t 3*011 there in his 
presence? A. —In his presence: yes, sir. 

Q . —And 3’ou and Proctor and Mrs. Goodspeed live close to each 
other? A .—Yes, sir. 

Q. — And, if you had only wanted to meet for conference between 
3’ourselves, 3’ou could have met there where you were, and it was four 
miles over to Barnstable? A. —Yes, sir; but we were brought 
down Col. Proctor’s plans. 

Q .—Did he notif3 T 3’ou to appear before Judge Day? A. —No, 
sir, not before Judge Da3’. We met after a while; and he wanted 
me to give a warranty deed, and I tendered him a guardian’s deed: 
but he would not accept it, and said he wanted a warranty deed. 
Finally, he came to me and wanted to get this thing off his hands ; 
and he wanted me to go to Barnstable, and there we fell in with 
Judge Day. 

Q. — And there 3 r ou had 3’our talk? A. —Yes, sir. 

Q. —And did he advise you about it? A. —Proctor brought this 
matter up again, and you (Mr. Harriman) came in and tried to per¬ 
suade him ; but he wanted to get from us a warranty deed. I referred 
to Judge Day this question, whether we were obliged to give Proctor 
a warranty deed. He says, “ You can give a warranty deed if you 
choose : you are not obliged to.” We chose not to give it. 

Q. —An3’ thing said about the abstract of the title? A. —I don’t 
remember all the conversation, sir. 

Q, —Did 3’ou have an3’ thing to do with having the paper drawn? 
A. — I did, sir. 

Q. —Whom did you employ to draw the original draught of that 
paper? A. — Judge Day drew the paper. 

Q. — Did you employ him? A. —No, sir, I didn’t employ him. 
He volunteered to do it. 



294 


HEARING —JOSEPH M. DAY. [March, 

Q. — Without any requests from anybody? A. —Without any 
request from anybody that I know of. 

Q. —Who made the guardian’s deeds? A. —Asa E. Lovell. 

Q .—Were there two papers drawn? Wasn’t there one drawn 
before this one, and given up? A. — Yes, sir. 

Q .—Who drew that original paper? A. — Judge Day drew the 
original paper. 

Q. — Draw both? A. —I won’t say that he drew both. 

Q. —He drew the original paper? A. — These are copies. 

Q. — How many times did 3’ou go and see Judge Da} T ? A .—I 
couldn’t tell. I was there, and met him. 

Q. — Your ward was a } T oung man capable of attending to busi¬ 
ness, except for the fact that he was a minor? A. —He was. 

Q. — Bright and intelligent? A. —l r es, sir. 

Q. — And he held most of those interviews with Judge Day in 
regard to this matter? A. —Y'es, sir. 

Q. (By Mr. Wadleigh.) — Mr. Witness, did } T ou intend to have 
the Committee understand that you never went down to Judge Day 
to get his advice about these matters? A. — I never went down 
there. 

Q. —You never have? A. — Not to my knowledge. 

Q. (By Mr. Crowley.) — How did he happen to write the agree¬ 
ment? A. — We could not give deeds at that time. Col. Proctor 
wanted to take immediate possession of that farm ; and Judge Day 
sa} T s, you can have an agreement drawn up that } 7 ou will deliver him 
the deed as soon as it goes from the court. 

Q. (B3 7 Mr. Harriman.) —Wasn’t it understood, between you and 
Judge Day that he would grant license to sell within the agreement 
all this estate? A. — I didn’t say that. 

Q. — This agreement was drawn up before any license was 
granted? You hadn’t any license to sell, not until the 10 th of 
August, and this was drawn up the 30 th of June? A. — The origi¬ 
nal was drawn up the 30 th of June. 

Q. — l r ou hadn’t then made any application for a license, had you ? 
A. —I made application about this previous. 

Q. — Had you petitioned for a license to sell? A. —Y^es, sir. 

Q. — Did the original agreement? A. —Yes, sir. 

Q. — But the time for agreement on that petition hadn’t come? 
A. — No, sir. 

Q. —And that was sold at private sale, was it? A. — Yes, sir. 

Q. — To Col. Proctor? A. — Yes, sir. 

Q . —And previous to that time you had Judge Day draw off this 
agreement? A. — Yes, sir. 

Q. (By Mr. Crowley.) —Paid him for it? A. —No, sir, I 
never paid him. 


1882.] 


SENATE —No. 150. 


295 


Q. (By r Mr. Harriman.) —Have yoa settled your final account? 
A. — It is in the court now. 

Q. —Ever been allowed by the court? A. —No, sir, it has not. 

Q . (By Mr. Crowley.)— Do you know that anybody 7 ever paid 
him for drawing that up? A .—No, sir. He said his hand isn’t 
legible; and, says he, “You will have to get Mr. Thacher to make 
copies, each of 3*011, Col. Proctor and Mrs. Goodspeed; and,” he 
say*s, “ I make no charge of this myself. You will have to pa}’ 
Mr. Thacher.” I paid him my 7 part of it. He made no charge for 
that agreement or record. 

Q. (By the Chairman.)— Have you paid other bills against the 
estate of your ward? A. —I paid the bills for my ward. 

Q. — Has he paid airy? A. —I don’t think he has, sir. I pre¬ 
sume I ought to have known it, if he had. 

Q. (By* Mr. Harriman.) — Did he have any money 7 to pay Judge 
Day? A. —No, sir. 

Q. — Did he call upon y*ou? A. — Never. 

Q. — What bills have you paid? A. — I paid Charles Thacher’s 
bill for making these copies, and Lovell’s for making the deeds ; and 
I paid his tax-bill at Hyde Park, and some other little bills, I don’t 
remember now. 

Q. (By Mr. Thayer.) —Did you pay Lovell for making a deed 
of the same property described in that agreement? A. —Yes, sir. 

Q. —Judge Day didn’t make it? A. —No, sir. 

Q. — Have you filed your account? A. — I haven’t filed it. I 
have it at home. 

Q. — Have you ever charged the estate as guardian for any money 
paid Judge Day? A. —No, sir: not a dollar, not a cent. 

Q. —Has he ever presented any bill to you? A. — No, sir: he 
never asked me for a fee. 

Q .—You say you paid your share to the register for the three 
copies. How much did you pay? A. —I paid one dollar to Charles 
Thacher on account of Charles F. Goodspeed. 

Q. (By Mr. Harriman.) —Was Mr. Goodspeed there at the time 
you paid it? A. —I think he was : I wouldn’t be sure, but I think 
he paid his mother’s at the same time. 

Q. — Then, he was acting as agent for his mother? 

Mr. Thompson. He said what he did. 

Mr. Harriman. I don’t know that he did. 

Q. (By Mr. Burdett.) —Mr. Whitman, do you know the state of 
health of Mrs. Goodspeed at the present time ? A. — Yes, sir, I do : 
it is not very good. She is a frail, nervous sort of woman. 

Adjourned until 10 a.m., Wednesday, March 15 . 


296 


HEARING — JOSEPH M. DAY. [March, 




NINTH HEARING. 

Room 10, March 15, 1882. 

The Committee resumed the investigation at 10.20 a.m., Senator 
Jennings in the chair. 

Following are extracts from the testimony submitted in the inves¬ 
tigation of 1881 , offered now by counsel for the remonstrants, and 
agreed uoon as part of the case in the present investigation. 


PRINCE S. CROWELL. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. —rYour full name? A. — Prince S. Crowell. 

Q. — Where do you reside ? A. — At Dennis. 

Q . — Are }’OU a native of Dennis? A. —Yes, sir. 

Q. —You have resided there during your lifetime? A. — Yes, sir : 
all my life. 

Q. — Do 3 r ou know Judge Day, Mr. Crowell? A. — I do. 

Q. — How long have you known him? A. —Ever since he has 
been judge, and before. I could not remember exactly the number 
of years, but more than twenty years. 

Q. — Have you had occasion to transact business in the probate 
court during the time that he has been judge? A. — I have. 

Q. — To what extent, as nearly as you can state, sir? A. — Well, 
I was executor of my brother-in-law’s estate, — a sort of trustee and 
guardian for the children, who were all minors. The will was proved 
when the judge was register: I think in 1857 . I think the first 
return, or the second return, I made of the accounts, was in 1858 : I 
do not remember distinctly. It ran along, and I made return about 
ever} T year for ten years. There was a good deal of property and 
minor children to look after; that is, as far as that is concerned. 
Then I was executor of my father’s estate, executor of my father-in- 
law’s estate, and one of the executors of the estate of Levi Hallett. 
That was the last one. He has been dead about seven years. Prob¬ 
ably the accounts were rendered about five years ago, — the last 
accounts. That is the extent of my business so far as probate is 
concerned. 





1882.] 


SENATE —No. 150. 


297 


Q- — And have you known and seen Judge Da } 7 otherwise, outside 
of the probate court? A. — Oh, I have frequently ! 

Q. — Now, will you state, Mr. Crowell, so far as you have seen, 
what his conduct and manners have been tovvards persons who were 
prosecuting business in the probate court? A. —Well, I never saw 
any thing that appeared to me to be out of shape, or rude. Some¬ 
times, of course, he has a way of his own, the same as most every 
one has ; but I never saw any thing rude in him. He attended to 
his business, I should say, in a business-like way. 

Q •—What is Judge Day’s usual mode of treating people? Does 
he treat them kindly or unkindly? A. — Well, I have never seen 
any thing but what was perfectly kind. 

Q •—Now, Mr. Crowell, can you tell us how frequently you have 
seen Judge Day, during these twenty years, up to the present time? 
A. —Oh, I could not! Of course I do not go to Barnstable unless 
I have some business. Not very often; sometimes at court there, 
in the Superior Court, and so forth. I have met him down at 
Harwich. I used to be in the bank there quite frequently. I don’t 
think the judge was ever at my house. I have met him in that re¬ 
gion. I built ships there at one time: he was down there at that 
time. I have met him here in the State House. 

Q. —You have met him in Boston frequently? A. —Yes, sir. 

Q — Now, at any time, under any circumstances, have you ever 
seen Judge Day, when, in your opinion, he was at all under the in¬ 
fluence of any intoxicating liquor? A. — I have never observed any 
thing. 

Cross-Examination by Mr. King. 

Q. — Mr- Crowell, you are a man of pretty large wealth, I believe? 
[After a pause,] What do you answer to that question? A. —That 
is an indefinite term. 

Q. — I ask you if you are not understood to be, down there in 
Barnstable County, a rich man? A. — Well, I don’t know whether 
I am or not. 

Q. —Well, come to another matter which perhaps you won’t be so 
delicate about, — whether you are not taxed about as largely as any¬ 
body In the county of Barnstable? A. — Well, I don’t know about 
that, so far as Barnstable County is concerned ; so far as Dennis is 
concerned, I am. 

Q. — And you usually get treated pretty well at probate court? 
A. —Well, generally. 

Q. —Now I wish you would tell the Committee, with a little more 
particularity, what this way is which Judge Day has of his own, 
which you speak about. A. — Well, I remember one circumstance, 
the will of Nathan Foster, one I was executor of. He called the 



298 


HEARING — JOSEPH M. DAY. [March, 


witnesses to the will, and one of them objected, made an objection. 
He took the usual form. He had signed, the old gentleman. lie 
asked him if that was his last will and testament, — the usual form, 
I cannot give the words, — and he objected. Then the judge said, 
“ That is } T our signature? ” — “Yes, sir.” — How came you to sign 
it?” — “Well, I was asked to.” Said he, “What did he say to 
3~ou? ” — “ Well,” said he, “ I want you to witness an instrument.” 
And various questions of that sort in a business-like shape. Some 
people might say that was rude. 

Q. — Some people might say that was rude? A. —Some might: 
yes, sir. 

Q. —How long ago was that? A. —Well, that was— I think it 
was about seventeen or eighteen years ago. 

*Q. — Seventeen or eighteen 3 T ears ago he treated that man so that 
it has made an impression upon your mind ever since. Now, will 
you be kind enough to mention another case that will illustrate that 
way Judge Day has of his own? A. — I do not remember any thing 
that I took any notice of. 

Q. — Now, will you state to the Committee what this way is that 
he has of his own, that you speak of? A. —Well, I have not got 
the power of language to describe ; and I am not an artist. 

Q. — Well, whether it is not a manner, which, to use 3 T our own 
words, some people would consider rough? A. —The3 T might, under 
certain circumstances, if they did not take particular notice of it; 
but I think it was more regular, business-like wa3 T . 

Mr. King. I guess that is all. 

Q. (B3 t Mr. Gooch.) —Well, Mr. Crowell, the judge had asked a 
series of questions, had he? A. —Yes, sir. 

Q. — And he wanted the man to state distinct^ whether he under- 
derstood, when he signed that instrument, that he was signing a will? 
A. —That is what he wanted. 


JOSEPH K. BAKER. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Mr. Baker, your full name? A. —Joseph K. Baker. 

Q .—Where do you reside, Mr. Baker? A. — In the town of 
Dennis. 

Q . — How long have you resided there? A. — About fifty-three 
3 T ears. 

Q. — I mean to say, that has been your place of residence ? A. — 
Yes, sir: I was born there. 




1882.] 


SENATE —No. 150. 


299 


Q • — You have represented your town in the Legislature? A. — I 
have tried to. I have endeavored to. 

Q • — And you have represented the senatorial district in the Senate 
how many terms? A. — Two in each. 

Q. — Have you been a member of the Governor’s Council? A .— 
Yes, sir. 

Q • —For how long a time, sir? A. —Four years. 

Q • — Do you know Judge Day ? A. — I do. 

Q • —How long have you known Judge Day? A. — I should think 
twenty-five years at least. 

Q . —And will you state to what extent you have known him? A. 
— Well, I have had business before his court — probate court — a 
number of times, and have been there quite frequently in the court at 
different times. I have had him emplo3*ed as counsel for parties I 
represented, and interests I represented, and also against me; and 
have known him in court at all times. 

Q . — During this period have 3*011 met him frequently every year? 
A. —Quite so. 

Q. — 80 far as 3*011 have observed, what has been his mode of treat¬ 
ment of the parties who are in his court transacting business? A . — 
Well, as far as I am concerned in3*self, I have alwa3 7 s been treated 
with the utmost courtes3* and kindness. 

Q. — How was it in other cases? A .—I have seen nothing dif¬ 
ferent from it in other cases. 

Q. — Have other people been treated just the same as 3*011 have, so 
far as 3*0111* observation goes? A. —In m3* presence ; that is, as far 
as I know. 

Q .—Have you ever, during all the time that 3*011 have known 
Judge Day, seen him when 3*011 supposed him to be, in the slightest 
degree, under the influence of intoxicating liquor? A .—I never 
have. 

Q. — And in his intercourse with people generally, so far as you 
have observed, is he kindly? A. —Very kindty, as far as my experi¬ 
ence goes. 

Q. — And 3 T our observation ? A. — And my observation. 

Q. —You are one of the remonstrants in this case? A. — I am. 

Q. —Will 3 7 ou state the extent of your business? 1 am told that I 
did not ask 3 r ou particularly in relation to that. A. —Well, sir, I 
could not tell at this time. I should judge I had settled a dozen 
estates at least as administrator, and been there frequently as witness 
to a will, which I have been for other people. 

Q. — That is, you have settled not less than a dozen estates, and 
attended all the courts necessary to settle these cases, and have fre¬ 
quent^* been there as witness in other cases? A. —Aes, sir. 



300 


HEARING —JOSEPH M. DAY. [March, 


Cross-Examination by Mr. King. 

Q. — You have been treated very well, Mr. Baker, I understand? 
A. —Yes, sir. 

Q. — And you never have seen any instance of any unpleasant 
treatment, by the judge, of anybody? A. — None that I remember 
of. 

Q. — In all these years? A. — In all these years. 

Q. — And you would state to the Committee that he was a man of 
entire courtesy to people doing business in his court? A. —As far 
as my observation goes. 

Q. — Never any roughness in his manner whatever ? A. — Nothing 
that I consider roughness of manner. 

Q .—Wouldn’t you think that he was a little more gentlemanly 
and courteous than judges usually are? A. —No, sir. 

Q.—Fully up to the standard, however? A .—Very kind; as 
much so as the average of judges. 

Mr. King. That is all. 

EDWARD E. CROWELL. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — What is } r our full name? A. —Edward Everett Crowell. 

Q . — You reside where ? A. — In Dennis. 

Q. — How long have you resided there ? Have you resided there 
all your life ? A. — About. 

Q. — Do you know Judge Day ? A. — I do. 

Q. — How long have you known him? A .—Twenty or twenty- 
five years. 

Q .—Have you had occasion to transact business in his court? 
A. —I have. 

Q. — To what extent? A. —I have had a number of estates — ten 
or fifteen — to settle : I cannot tell exactly. 

Q. —And have you been in court at other times as a witness? A. 
— I have. 

Q .—In cases where you were not settling the estate yourself? 
A. —Yes, sir. 

Q. — Will 3’ou state to the Committee what was his manner of 
treatment of parties doing business in his court, so far as 3 T ou have 
observed? A. — I think he is a very square man, decided, as far as 
as I know. When he says thus and so, he means it. He always 
treated me well, as far as I know. He alwa3’s treated me veiy pleas¬ 
antly, as far as any business I have had. 


1882.] 


SENATE —No. 150. 


301 


Q • — Well, how about his treatment of other people, so far as you 
have observed? A. —Nothing has come to my notice particularly 
that I wish to mention, that I know, that I could speak for or against. 
I know that he is decided. When he says a thing, he means it. 

Q •—That is, when he decides a case, he decides it promptly? 
A. — Yes, sir, very, indeed. 

Q •—Now, Mr. Crowell, at any time, under any circumstances, 
have 3’ou ever seen Judge Day treat a party rudely? A. — I do not 
think I have : no, sir. 

Q. —Have you ever at any 7 time seen Judge Day r when you sup¬ 
posed him to be at all under the influence of intoxicating liquor? 
A. — No, sir. 

Q. — How many times have you met Judge Day? Are you in the 
habit of meeting him, except in probate court? A. — Yes, sir. 

Q. — How frequently? A. — Well, occasionally- at Boston, and 
while going and coming ; at different times in the court-house, and on 
different occasions. 

Mr. Gooch. That is all. 

Cross-Examination by Mr. King. 

Q. —You have been one of Judge Day’s clients, have you? A. — 
Well, I don’t know but I have. Not frequently, though. 

Q. — You carry things to him occasionally? A. — Not that I 
know of, any particular case. I have usually had other counsel to 
examine. 

Q. — Well, you have had sufficient experience in settling estates to 
go there with your papers in correct form, I suppose? A. — Some¬ 
times he has said they were not correct. 

Q. —Well, how was it generally 7 ? A. — Generally I have tried to 
have them correct. 

Q. — And generally were treated well by the judge, were you? 
A. — Well, when they 7 w r ere not so, he has told me. 

Q .—Well, now let me ask y T ou in all fairness what the general 
manner of the judge is to the parties in court? I ask y 7 ou particu¬ 
larly^ with reference to old people who come there, unfamiliar with the 
business of probate court, whether or not he is not abrupt and rough 
with them ? A. — I have never really been there to see any 7 thing of 
the kind. That is, he gives a square answer, — I know that, — and, 
as a general thing, is decided. He is decided in his answers. 

Q. — But never abrupt? A. — Well, not that I should call abrupt. 
He might speak a little square sometimes. 

Q. — Some people would call it abrupt, wouldn’t they ? A. — They 
might. 

Q .— You live at quite a distance from Barnstable? A. — Yes, 
sir. 




302 


HEARING —JOSEPH M. DAY. [March, 


Q. —So that }’oii are not in the habit of seeing Judge Da} r , except 
when } t ou are there upon business? A. —Not often, unless I am over 
there. 

Mr. King. That is all. 

WILLIAM IIEWINS. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Your full name? A. —William Hewins. 

Q. —You reside where? A. —At Falmouth. 

Q. — That has always been 3’our place of residence? A. —It has 
for the last thirty odd years. 

Q .—Have you been one of the county commissioners of Barn¬ 
stable County? A .—Yes, sir. 

Q. — How man3 r 3'ears? A. — Three years. 

Q. — How long have 3 T ou known Judge Da3 r ? A.—Well, I 
should think ever since he has been in Barnstable. I have been 
more particularly acquainted with him for the last thiily 3 r ears. 

Q. — Have you had occasion to see him frequently when he has 
held his court at Falmouth? A. — Yes, sir. 

Q .—Will you state what opportunities you have had for seeing 
and knowing Judge Day when the court was held at Falmouth? A. 

— He held his court at my house, and stopped with me while he was 
there. 

Q. —Until how lately? A. — Until perhaps five 3 T ears. 

Q. — He stopped at 3’our house, and boarded at 3 T our house? A. 

— Yes, sir. 

Q .—How frequently have 3 T ou had occasion to be in his court? 
A. — Why, always when he had court there, I was in perhaps half 
the time, in and out. 

Q. — How frequent^ 7 were the courts held there? A. — Once a 
3 r ear onl3 T . 

Q. — Have you had occasion to see him at Barnstable? A. —Yes, 
sir. 

Q. — Frequently? A. —Well, considerabty so for a number of 
3 T ears. For three 3 T ears I used to see him alwa3 T s when I was there. 
He was counsel for the commissioners part of the time. 

Q. —Now, sir, so far as 3 T ou have observed, what has been his 
treatment of the parties transacting business in his court? A .—• 
Well, I never have seen any thing but what was gentleman^. I 
never heard any complaint from an3 T one in the court there but what 
they received pleasant treatment and respectful treatment. 

Q. — Now, have you at any time, under any circumstances, ever 


1882.] 


SENATE —No. 150. 


303 


seen Judge Day when 3-011 supposed him to be in the slightest degree 
under the influence of intoxicating liquors? A. — I never have. I 
don’t know as I ever saw him take an}- liquor but once. I once saw 
him take a glass of liquor. 

Q • —When was it, sir? A. —It was some } r ears ago. It was on 
a peculiar occasion. The cars came up from the Cape, and the}- got 
stuck near Monument or Sandwich ; and they were out all night. 
Judge Day was aboard, and Mr. Marston, and quite a number of 
others. They got out at Monument. I was running a stage then, 
and was there over night. They got there about sunrise in the 
morning. They had been out all night without any thing to eat: 
and it so happened that Mr. Parker, where we stopped, happened to 
have a small amount of whiskey; and we took some all around. 

Q. — Then, it is true that sometimes respectable gentlemen on Cape 
Cod take a drink of whiskey? A. — Well, they did on that occasion. 
I think that is the only time that ever I saw him take any thing. 

Q. —And he made your house his home when holding court at 
Falmouth? During what period were you county commissioner? 
Give us the date, or as near as you can. Within twenty years? A. 

— Yes, sir: just about twenty years ago, while Judge Day was judge 
of probate. 

Q. — It was since Judge Day has been judge of probate? A. — 
Yes, sir. 

Cross-Examination by Mr. King. 

Q. — Mr. Hewins, since the expiration of your service as county 
commissioner, I take it you have not been to Barnstable a great deal? 
A. —Not so much, sir, as before. 

Q. — l r ou went out of office as county commissioner about twenty 
years ago. Now, how many courts do you think you have attended 
at Barnstable since that time? A. —Oh ! none at Barnstable. 

Q. — And they have been held only once a year at Falmouth? A. 

— Once a year at Falmouth. 

Q. — And I suppose you have not attended all of these? A. — 
Yes, sir. 

Q. — All of these? A. —Well, within until perhaps two or three 
years. They have not been held at my house, and I have not at¬ 
tended them, although I sometimes have. 

Q. —Well, has not there been complaint sometimes of rude treat¬ 
ment by the judge in probate court? A. — I never heard of any 
there. 

Q .—Where did you hear of any? A.— I never heard any any¬ 
where, excepting, since this case has been talked of, I have heard 
people say that was one of the complaints brought against the judge, 

— of treating people rudely. But all that I have heard speak of it in 


304 


HEARING —JOSEPH M. DAY. [March, 


our place, or who have attended court there, say the} T have never 
seen any thing of it. 

Q. — You never heard any thing, before this investigation came up, 
of rudeness at all? A. — No, sir. 

Mr. King. Never heard a word about his being abrupt or rude? 
That is all. 


CHARLES DILLINGHAM. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Where do you reside ? A. — At Sandwich. 

Q. —A native of Sandwich? A. — I am. 

Q. — Alwaj’s resided there ? A. — Alwa3's. 

Q. — How long have you known Judge Day? A. — More than 
twenty years. 

Q. — Have you had occasion to transact business in his court? A. 
— Several times, sir. 

Q. — How many times, and to what extent, as nearty as 3’ou can 
state? A. —I think I have settled half a dozen estates there. 

Q. — Have you also met him frequently at other times and places? 
A. — Yes, quite often on the train and elsewhere. 

Q. — Will } t ou state, so far as 3’ou know, what his manner of treat¬ 
ment is of the parties transacting business in his court? A. — I have 
received nothing but very gentleman^ conduct from him, and I have 
never seen any thing else in his court. I have generally attended to 
my own affairs, and let other people attend to theirs. 

Q. —But you know of no treatment of any person, so far as 3*our 
observation has gone, that is not gentlemanly? A. —I have never 
seen ati3 r thing, sir. 

Q. — Now, sir, have 30U at any time, under aii3 T circumstances, 
ever seen Judge Da3 7 when you supposed him to be in the slightest 
degree under the influence of intoxicating liquors? A. —Never. 

Mr. King. I think I have nothing to ask him. 


MILLARD W. NICKERSON. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Your full name is Millard W. Nickerson? A. —Yes, sir. 

Q. — Where do you reside? A. — I reside at South Dennis. 

Q. —A native of Dennis? A. — Yes, sir. 

Q. — Always resided there ? A. — Always. 

Q. — How long have you known Judge Day? A .—Well, I have 


1882.] 


SENATE —No. 150. 


305 


known him particularly since he has been judge of probate, and was 
acquainted with him before a number of years. 

Q • — Have 3’ou had occasion to transact business in his court? 
A. — I have, sir. 

Q —To what extent? A. — Well, quite largety. I represented 
an estate, where the family was a widow and minor children, for 
twenty 3’ears, and have been conversant with the settling of that 
estate. 

Q. — Have you had other estates? A. — I have, sir. 

Q -—How many, should you think, in all? A. — Well, 1 com¬ 
menced the administration of this matter fortv years ago last month 
by letters of administration upon the estate of Elijah Chase. I have 
had letters of administration, I think, upon the estate of Eleazer 
Nickerson, Isaac Dow’s, and 1113’ father’s. 

Q. — 80 that 3’ou have had occasion to be veiy frequentty in pro¬ 
bate court? A. — I have : yes, sir. 

Q . — Now, sir, what has been the treatment of yourself, and the 
other parties transacting business in the probate court, so far as 3011 
know ? A. — Do 3 0U mean for all the term of Judge Da3 T ? 

Q. — Yes, sir, during Judge Day’s term. A. —Well, my inter¬ 
course with Judge Da3’ has been that of a practical business man. 
My father died in 185 G. I took letters of administration. It was one 
of the common wills giving the property to the widow and a large 
famity of ten children, which brought me frequentty in contact with 
the court, and in the settlement and administration of the estate with 
Judge Da3’. My intercourse with him has been pleasant, so far as I 
understand the man. 

Q. —80 far as you have observed his treatment of other parties in 
his court? A. — I find there is a difference of opinion in regard to 
that. 

Q. — I won’t ask you about their feelings, but I ask from your own 
observation ? A. — My observation has been that I have not seen 
any thing in the management of Judge Da3', in the courts of probate 
where I have attended, that I should call abrupt in an3 r respect. 

Q. — Now, how frequentty have you seen Judge Day at other 
times? Have 3011 seen him frequentty on other occasions? A. — 
Quite often. 

Q. — Have you at au3 r time, under aii3* circumstances, seen Judge 
Da3* when 3’ou supposed him to be in the slightest degree under the 
influence of intoxicating liquors? A. — Never: I am a total-absti¬ 
nence man. 

Mr. Gooch. You don’t pretend to be an expert. That is all. 



306 


HEARING —JOSEPH M. DAY. 


[March, 


Cross-Examination by Mr. King. 

Q. — Have you ever said that Judge Day was not, in your judg¬ 
ment, a proper man to be judge of probate? A. —No, sir: I don’t 
think I have said that. 

Q. — You don’t remember that? A. — No, sir. 

Q. —Let me ask you if you have ever made that remark about 
Judge Day to Eleazer Nickerson in regard to the estate of Seth T. 
Nickerson? A. —Nothing that would ever be detrimental to the 
conduct of Judge Day. 

Q. — Let me ask you if you have not said that Judge Da}’ and 
Eleazer Nickerson managed between them to absorb pretty much the 
estate of Seth T. Nickerson? A. — Oh, no ! 

Q .—Nothing of that sort? A. — No, sir. 

Q. —You never made any complaint about the settlement of that 
estate? A —I never did, so far as Judge Day is concerned. No. 
In regard to the administration of the estate, there might be a differ¬ 
ence of opinion. 

Q. —Let me call your attention a little more minutely to that case. 
Do you remember how much there was of the estate? A. —What 
do you mean ? 

Q .—The amount of the inventory? A. —No, sir, I do not. I 
have the figures at home. 

Q. — Do you remember about how much was allowed to the admin¬ 
istrator? A. — I do, I think. 


CHARLES F. SWIFT. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — You reside at Yarmouthport? A. — I do, sir. 

Q. — Do you know Judge Day? A. —Yes, sir, I do. 

Q. — How many years have you known him ? A. — I should think, 
from twenty-five to thirty years. 

Q . —You are a member of the present Legislature? A. — I am, 
sir. 

Q. — Have you been a member before ? A. — I have, sir : I was 
a member last year, and a member in 1857 and 1858 . 

Q.—Have you ever been register of probate? A. — I have, sir, 
a short time. 

Q. — Who was judge at the time you were register of probate? 
A. —Judge Day. 

Q* — Have you had occasion to be in and out of the probate court 


1882.] 


SENATE—No. 150. 


30T 


since that time? A. —Yes, sir: quite frequently. I would drop in 
while the court was progressing. 

Q •—Now, what has been Judge Day’s manner, and his treatment 
of the parties who have to do business in his court? A .—I have 
never observed any thing objectionable when I have been there. 

Q •—Well, sir, have you ever, at any time, known Judge Day to 
be in the slightest degree under the influence of intoxicating liquors? 

A. —I never have, sir. 

Q -—During what period did you say } t ou were register? A .— 
About six months in the year 1858 , I think. 


JOSHUA C. HOWES. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. —You reside where? A. —In Dennis. 

Q. — Do you know Judge Day ? A. — I do, sir. 

Q. —How long have you known him? A. —More than twenty 
years, — twenty or twenty-five. 

Q. — How long have } r ou resided in Dennis? A. —It is my native 
place, and I alwa3’s resided there. 

Q. — Have you held public office? A. —I have. 

Q. —What office have you held? A. —I am, at the present time, 
president of the Yarmouth bank. In previous 3'ears I have held the 
office of assessor, selectman, and overseer of the poor of the town 
of Dennis. 

Q. — Have 3 r ou held any United States office? A. — I have been 
deputy 7 collector, and had been an assessor of internal revenue. 

Q. — Have 3 r ou been a member of the Senate or House? A .—Of 
the House, I have. 

Q. —And you have known Judge Day twenty 3 r ears? A .—Yes, 
sir : more than twenty 7 years. 

Q .—Have you had business in his court? A .—Yes, sir, I have. 

Q. —Frequentty? A. — Yes, sir : on an average more than once 
a 3 r ear for twenty 7 3 T ears. 

Q. — What has been his treatment of parties transacting business 
in his court, so far as 3 7 ou have observed ? A. — Courteous to me, 
and, so far as I have observed, courteous to all. 

Q. —Now, Mr. Howes, have you ever, at an3* time, seen Judge 
Da3 7 when he was in the slightest degree under the influence of in¬ 
toxicating liquors ? A. — Never. 

Cross-Examination by Mr. King. 

Q . —How far have you lived from Barnstable? A .—Eight miles. 


308 


HEARING —JOSEPH M. DAY. 


[March, 


GEORGE H. SNOW. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Gooch. 

Q. — You reside where ? A. — Harwich. 

Q .—What is your business? A. —Cashier of the Cape Cod 
National Bank. 

Q. — Do 3’ou know Judge Day? A. —Yes, sir. 

Q .— How long have 3*ou known him? A. — I should think twent3 r 
years. 

Q .— Have 3011 had occasion to transact business in his court? A. 
— Yes, sir. 

Q. — How frequentty, sir? A. — Well, I have settled three estates 
since 1864 , I think. 

Q. —What has been his treatment, so far as you have had oppor¬ 
tune* to observe, of parties transacting business in bis court? A. — 
It has always been business-like, so far as I have observed. 

Q. —Did you ever see him, under any circumstances, treat anybody 
with airy discourtesy or rudeness? A. — I never did. 

Q. — Have 3 7 ou had occasion to see Judge Day frequently during 
this period of time? A. —Yes, sir, quite often. I come to Boston 
once a week, and he holds court down in our town, and I have occa¬ 
sion to see him quite often. 

Q. —A large portion of the probate business in 3*0111* count3 r is 
transacted in 3*0111* town and vicing*? A. —Well, they hold courts 
there frequent^*. I don’t know what percentage is done there. 

Q. — Now, sir, have 3*011, at airy time, under an3* circumstances, 
seen Judge Da3* when he was in the slightest degree under the influ¬ 
ence of intoxicating liquors? A .—No, never. 

DANIEL COBB. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Gooch. 

Q. — Where do you reside? A. —In the summer, at Barnstable, 
usualR* from May to November. 

Q. —Do you live near to Judge Da3* when 3*011 are at your home in 
Barnstable? A. — The next house. 

Q • — Are you and Judge Day accustomed to be in and out of each 
other’s houses when you reside there? A. — Almost daily. 

Q. — 80 that you have intercourse with him ver3 r frequently ? A. — 
Yes, sir: our families associate intimate^*. 

Q. —When residing there, do you usually see him daily? A. — I 
should say every day, when we are both in town. 


1882.] 


SENATE —No. 150. 


309 


Q • — And often several times a day? A. —Yes, sir, often. 

Q' — Now, sir, have 3*011 at anytime, under any circumstances, 
seen Judge Day when 3*011 supposed him to be in the slightest degree 
under the influence of intoxicating liquors? A. — I never have. 


SILAS F. SWIE'T. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q •—Where do 3*011 reside? A. — In the village of West Yar¬ 
mouth. 

Q- — Do you hold an3 T public office? A. — No, sir. 

Q • —How long have you resided in Yarmouth? A. —All my life¬ 
time. 

Q. — Do 3 T ou know Judge Day ? A. — I do. 

Q. — How long have you known him ? A. — I think about twent3*- 
two 3*ears. 

Q . —Have 3*ou had an3 r occasion to transact business in his court? 
A. — I have. 

Q • — To what extent? A. — I have settled six estates, five or six, 

— six, I think. 

Q. — How recent^* have 3*ou transacted business in his court? A. 

— Last November. 

Q. — So far as 3*0111- observation has extended, what has been his 
treatment toward parties in his court? A. —Ver3 T gentleman^*, so 
far as I could see. 

Q. —Have you had occasion to meet Judge Da3* frequent^? A. 

— Not veiy. 

Q. —To what extent? How often have you seen him during this 
time? A. —I could not sa3 T . For the last five 3 7 ears I have occa¬ 
sional^ 7 met him on the train. 

Q. — Do 3*011 see him every time he attends court in Falmouth? 
A. —Yes : I have for the last ten 3*ears, more than half the time. 

Q. — Have you at any time, or under an3 T circumstances, seen him 
when he was in the slightest degree under the influence of intoxicating 
liquors ? A. — Never. 

AMBROSE N. DONE. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. —Where do you reside? A. — Harwichport. 

Q. — In business? A. — Yes, sir. 

Q. — What business ? A. — Merchant. 


310 


HEARING —JOSEPH M. DAY. 


[March, 


Q. — Do 3 r ou know Judge Day ? A. — Yes, sir. 

Q. — How long have you known him? A. — Some twelve to fifteen 

years. 

Q. — Have you transacted business in his court? A. — I have. 

Q. — To what extent? A. —I have settled one estate. 

Q. —Have you had occasion to be in his court except on business 
in connection with that estate? A. — I believe I have. 

Q. — So far as 3^011 have observed, what has been the treatment of 
parties in his court? A. — He has dealt with them in a prompt and 
business-like manner. 

Q. — Have 3'ou ever seen him treat an3" witness with an3 T discour¬ 
tesy ? A. — Never. 

Q. —Or an3^ party? A. —No, sir. 

Q. —Have 3 T ou had occasion to see Judge Day from time to time 
during these twelve years 3 T ou have known him? A. —I have, sir. 

Q. — How frequently? A. —Perhaps live or six times a year. 

Q. — Have 3^ou ever seen him at any time, or under an3 T circum¬ 
stances, under the influence of intoxicating liquors? A. —Never. 


SIMEON ATWOOD. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Where do 3’ou reside A. — Wellfleet. 

Q .—What is your present business? A. —Deput3’ collector of 
customs. 

Q. —How long have 3 T ou been deput3 T collector? A. — Eighteen 
or nineteen 3’ears. 

Q. — Do you know Judge Da3 r ? A. —Very well. 

Q. — How long have 3 T ou known him? A. — Xwent3 T -five 3’ears. 

Q. — Had occasion to transact business in his court? A. — Well, 
almost every court in Wellfleet for seventeen or eighteen years. 

Q. — What has been his treatment of parties transacting business 
in his court, so far as you have observed? A. — Courteous, so far 
as I have known. 

Q. — How frequently have 3 T ou met Judge Da3 T except at court? 
A. — Very frequently. 

Q. — Have 3*011 at an3 T time, or under am T circumstances, seen him 
in the slightest degree under the influence of intoxicating liquors? 
A. — Not at all. 


Cross-Examination by Mr. King. 

Q. — Was there a case in the probate court, some time last fall, in 
which Paul Knowles was concerned? 


1882.] 


SENATE —No. 150. 


311 


Q. — And you were present at court? A. — I was. 

Q. — What was the conduct of the judge in that case? A. —Very 
proper, I thought. 

Q. — Was there any rudeness exhibited to anybody? A .—No, 
sir. 

Q. — Haven’t you stated that there was? A. —No, sir. 

Q. — Never have? A. —No, sir. » 

DR. SAMUEL H. GOULD. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — You reside in Brewster? A. —Yes, sir. 

Q. — How long have you known Judge Da}'? A. — Since he came 
into the county, I should think twenty-two or three or four years, — 
somewheres along there. 

Q. — Had occasion to transact business in his court? A. — I 
have, somewhat. 

Q. — Was the probate court at one time held at Brewster? A. — 
It was, and I was generally out and in. 

Q. —What was his treatment, so far as you have observed, of par¬ 
ties transacting business in the court? A. — Courteous, in all cases, 
in court and out. 

Q. — Have you had occasion to see Judge Day at other times ex¬ 
cept in attendance at the court? A. —Generally I have met him 
going; to and from Boston on the train. 

Q. — Have you at any time, or under any circumstances, seen him 
when he was in the slightest degree under the influence of intoxicat¬ 
ing liquor? A. — Never. 

Q. — Have you any knowledge of an insane person by the name of 
Deborah C. Paddock? A. — I have. I was her family physician. 

Q. — Were you ever at Barnstable when Miss Mary Paddock was 
there before Judge Day. A. —I was there. What I knew of the 
cae I knew from hearsay. She went there to see Judge Day, to get 
some papers, and Judge Day — 

Mr. King. One moment. 

The Chairman. What you heard is not competent. 

Q. (By Mr. Gooch.) —Did you see Miss Paddock? A. —Yes, 
sir. I went there for that purpose. 

Q. — Well, what occurred? A. — She went to get the papers, and 
she was to go to the hospital the next day. She came back, and I 
called to see her ; and she failed to get the papers. I suppose — 

Mr. King objected. 

The Chairman. What she said is all you are asked to state. 
What you know of your own knowledge, and what she said. 


312 HEARING —JOSEPH M. DAY. [March, 

Q. (By Mr. Gooch.)— She had failed to get the papers? A. — 
Yes, and was angr} T on account of it. 

Q .—You say she was angrj T because she didn’t get the papers 
from the judge? A. —She was. 

Cross-Examination by Mr. King. 

Q. —Did she state to you that she was rudely treated by the judge? 
A. — She did. 

Q. — Now let me ask }ou a question broadly, and I wish you to be 
a little deliberate in answering it: whether you remember what you 
said to her about the treatment she received from the judge? A. — 
I don’t recollect further than I recollect perfectly well saying that the 
judge had been in the habit of committing persons under those cir¬ 
cumstances. 

Q. —You anticipated, that, when she went there with the papers, 
she would get an order for committal? A. — I anticipated it. 

Q. —You were disappointed that she didn’t get them? A. — I 
should like to explain why. 

Q. —Answer my question : }'ou will have a chance to explain why. 
Now I want you to reflect upon this question, and answer it care¬ 
fully : whether you didn’t sa} r to Miss Paddock that Day’s not giving 
her the papers in that case came from his pure cussedness? A. — I 
don’t recollect any thing of that kind. That is an expression 1 think 
I am not in the habit of making; but I don’t remember it. 

Q. —You don’t remember whether you said it or not? A. — No, 
sir. 

Q. — Let me ask about something of a more recent date : whether 
you didn’t say, within a month, that Judge Da}' was not a proper 
man for judge of probate? A. — I never said it; never said it. I 
believe m} T head is level, and I never said it. 

Q. — You are not certain about it? A. — I have no remembrance 
of it. I generally have a level head. I have no remembrance of it. 

Q. —That is the way you put it? A. —I never said it. 

Q. — Which way will you put it? A. — I say I don’t remember 
it, and I am absolutel} T certain I didn’t sa} T it. 

Q. — Let me go back to the other transaction. Are you absolutely 
certain you didn’t say that this woman’s not getting the papers was 
on account of Day’s pure cussedness? A. — I don’t remember it. 
And now let me state — 

Q. — Never mind. You were indignant about it at the time? 
A. — Yes, sir. 

Q. — And you were in such a state of indignation you were liable 
to use that expression about “ pure cussedness ” ? A. —If I was 
ever in the habit of using it, it would be the proper time. [Laughter.] 


1882.] 


SENATE —No. 150. 


313 


Mr. King. That is all. 

Witness. Now, I would like to explain the reason I felt so indig¬ 
nant. I went to Taunton to get the lady into the hospital without 
having a hearing and without having her summoned by force. I went 
there, and saw the officers. 

Q. (By Mr. Gooch.) —Is that your signature? [Handing a paper 
to witness.] A. — I think it might be. 

Q •— Now, doctor, did you subsequently ascertain that you. were 
under a misapprehension at the time you used the expression in con¬ 
versation with Miss Paddock ? 

Witness. I was, and ascertained it the next day. 

REV. W. S. WALKER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Where do 3'ou reside ? A. — Barnstable. 

Q. — How long have 3 r ou resided there? A. — Since June, 1878 . 

Q. — Are you a clerg3’man of one of the parishes? A. — Yes, sir. 

Q. — What parish ? A. — The Baptist. 

Q. — How long have 3'ou known Judge Da3 r , Mr. Walker? A . — 

\ 

Something more than two 3 r ears. 

Q. — And during that time how frequenth 7 have 3'ou seen him? 
A. — Since June, 1879 , I have seen him quite often. I live at the 
next house from him on the west. 

Q. — And 3’ou see the judge daily when you and he are at home? 
A .— I think not as often as that: sometimes, perhaps, two or three 
times a da3 7 , and sometimes it will be two or three days before I see 
him. 

Q. — You meet as neighbors meet? A. — Yes, sir. 

Q. — How far is 3 r our house from his? A. — Perhaps five hundred 
feet. 

Q. — Now, sir, during the time you have known Judge Da3’, have 
3'ou ever, at an3 r time or under an3 T circumstances, seen him when he 
was in the slightest degree under the influence of intoxicating liquors? 
A. — No, sir. 

Q. (B3' Mr. King.) — You were asked that question before 3’ou 
were summoned here? A. — I was. 


WARREK ROGERS. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 
Q. — Where do 3’ou reside? A. — Chatham. 


314 


HEARING — JOSEPH M. DAY. [March, 


Q .—How long have 3 r ou known Judge Da}-? A .— I have been 
acquainted with him in the probate court ever since he took his seat. 

Q .—Have you had occasion to transact business in his court? 
A. — I have. • 

Q .—To what extent? A. — I have had business there more or 
less in small estates ever since he has been judge of probate, — a 
number of times every 3'ear. 

Q. — So far as }’ou have observed, what has been his treatment of 
parties transacting business in his court? A. — He has treated 
parties, so far as I know, where I have assisted and had business 
done, verjr kindly. 

Q. —And other parties doing business in the court? A. —Yes, 
sir. 

Q. —You sa}^ his treatment has been kind to other parties ? A. 

— The parties I have assisted. 

Q. —And all other parties you have seen? A. —Yes, sir, and 
m3'self. 

Q. — How often have 3 T ou had occasion to see the judge during this 
time? frequent^'? A. —Yes, sir. I used to go to court years ago, 

— ever3 r court. This 3 T ear I haven’t been so much. 

Q. — Have 3 r ou at any time, under any^ circumstances, seen Judge 
Day when you supposed him to be under the influence of intoxicating 
liquor ? A. — No, sir. 

Cross-Examination by Mr. King. 

Q. —When were 3'ou summoned to attend here? A. —Last Sat- 
urt^ay. 

Q. — Previous to your summons did you have an3 T conversation 
with an3'bod3' about 3'our testimon3 r ? A. — No, sir. 

Q. —Nobody said any thing about it? A. — Not a word. 

Q. —Have you had any conference since you were summoned about 
3'our testimony here? A. — No, sir. 

Q. — Have 3^ou talked with anybody about it? A. — No, sir. 

Q . — Not a soul? A. — No, sir. I never committed myself to 
anybod3' on that point. 


NATHAN D. FREEMAN. Sworn . 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Where do 3’ou reside ? A. — Provincetown. 

Q. — Are 3'ou one of the county commissioners in that county? 
A. —I am so understood, I believe. 


1882.] 


SENATE —No. 150. 


815 


Q. — How long have you known Judge Da}'? A. —Well, perhaps 
for twenty years. 

Q. — Have you had occasion to transact business in his court? 
A. —I have had some business in the court: not extensive, however. 

Q. —To what extent, as near as you can recollect? A. —Perhaps 
four or five cases. 

Q. —You usually see Judge Da}* when he is in Provincetown ? 
A. —Usually, yes, sir, when I am at home. 

Q. — So far as you have had occasion to observe, what is his treat¬ 
ment of parties in his court? A. — I have never seen airy thing 
wrong, in my opinion, in regard to the treatment of parties. 

Q. —Have you ever seen Judge Day, at any time, or under any 
circumstances, when you thought him under the influence of intoxi¬ 
cating liquor? A. — 1 never have. 

Q. (By Mr. King.) — You live how many miles from Barnstable? 
A. —Fifty, I believe they call it. 

Q. (By Mr. Gooch.) — You are one of the county commissioners? 
A. —Yes, sir. 

Q. —And go to Barnstable? A. —Yes, sir. 

Q. —And see Judge Day when he holds court there? A. — Yes, 
sir. 


JOHN D. HILLIARD. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Gooch. 

Q. — Where do you reside ? A. — Provincetown. 

Q. — What is your business ? A. — Merchant. 

Q. — Do } 7 ou know Judge Day ? A. — I do. 

Q. —How long have you known him? A. — The last ten }’ears. 

Q. —Had any occasion to transact business in his court? A. — 
I have. 

Q — To what extent ? A. — A few cases. 

Q. — So far as you know, and had occasion to observe, what is his 
treatment of parties doing business in his court? A .—In a busi¬ 
ness-like way. 

Q. — What do you mean by a business-like way ? A. — Promptly 
and expeditiously. 

Q. — How about his treatment of them, as to being courteous or 
otherwise? A .—I never saw an} 7 thing other than gentlemanly 
treatment. 

Q. — How frequently have you seen Judge Day? A .—Not very 
often. Usually twice a year when the court sits in our place, and 
occasional!}’ on the trains. 


316 


HEARING — JOSEPH M. DAY. 


[March, 


CHARLES G. DAVIS. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Burdett. 

Q. — Your full name is Charles G. Davis, is it not? A. —Yes, 
sir. 

Q. — And you reside in Plymouth? A. — I do. 

Q. —And are you judge of the district court for that district? A. 
— I am judge of a district court in that county. 

Q. —How long have you occupied that position? A. — Since 
1874 . 

Q. — How long have you known Judge Day? A. — I have known 
him ever since the period just after he came to Boston to practise 
here, — about thirty 3’ears, I suppose. 

Q .—Have 3*011 known him well during that period? A. — Yes, 
sir. I have not been intimate with him, but I have been what 3’ou 
might call a frequent acquaintance. 

Q. — Have 3011 met him often during that time? A. — I have met 
him on the average once a fortnight, I should think, except during 
the war. 

Q. —Have 3'ou ever seen him, Mr. Davis, under any circumstances 
or at any time, under the influence of, or affected b3^, intoxicating 
liquors? A. —I never have. 

Q. —Have 3 T ou met him socialty during these thirty 3~ears? A. — 
Vety often. 

. Q. —In what wa3’? A. —Well, during the last thirty or twenty- 
eight years, — I could not fix the exact date,—we were what were 
called Free-Soilers originalty in 1848 or 1849 . I do not know exactty 
what 3 r ear he came to Boston ; but since that time I have dined with 
him Saturda3 r s at Parker’s. 

Q. —How many times should 3^011 think? A. — I should think on 
an average, except during the war, twenty or twenty-five times a 
3 T ear, — perhaps two or three hundred times. 

Q. — Now, has wine been provided at those dinners? A. — For 
those that chose to call for it. 

Q. — Do you recollect that Judge Day has called for or used 
liquor at any of those dinners? A .—I could not say that I ever 
saw him drink any liquor in my life. He might have done it, but 
not under any circumstances that would call it to my attention from 
the results, or any thing that was said in conversation. 

Q. —Well, as I understand, 3 r ou have never seen him take, or be 
affected b3 r , liquor? A. —I could not sa3 T I had never seen him; 
but I have not any remembrance of ever seeing him such as to notice 
it. I have often seen him refuse it. 


1882.] 


SENATE —No. 150. 


317 


Q. —You have often seen him refuse it? A. —Yes, sir. And I 
have also taken late suppers with him at the Parker House ; and I do 
not remember of his ever using or calling for any intoxicating liquor, 
although he might. It is a matter that is so common at the Parker 
House, that, with some, I should not notice it if they did. But I 
cannot swear that I ever saw him ; and I never heard of an} T thing of 
the kind, —nothing that would ever call it to my notice to lodge it 
in my memory. 

Q. —Now, do you recall meeting him during the last political 
campaign in this State at a place where gentlemen were drinking 
after speech-making? A. —I do. 

Q. — Where was that? A. — I think it was in Barnstable. He 
refused it then, and made a remark— [Witness was here interrupted.] 

The Witness. It was a declaration accompanied hy an act of 
refusal to which I refer. 

Q. (B} r Mr. Burdett.) —Will you state whether he accompanied 
it with an} r declaration with regard to liquor? A. — He told me at 
that time, and shortly after in the presence of my wife — 

The Chairman. What he said afterwards, in the presence of your 
wife, is not material. If you can testify to any thing, it is simply 
to the language which he used in connection with the act itself, as 
part of the transaction. 

The Witness. Yes, sir ; but I was shortening the testimony by 
including two cases in one statement. I can refer to them sepa¬ 
rately. He stated at the time that he had not taken any intoxicating 
liquors, either for two years or for more than two years, I could not 
say which. 

Q. (By Mr. Burdett.) —That was at the time he refused it? A. 
— Yes, sir. 

Q. — Now, you know the manners of the man, do you ? A. — Yes, 
sir : I think I ought to. 

Q .—Will you state what his method of stating his opinions is, 
and his general manner of conversation and debate? A. — He is 
blunt, of good temper, a keen sense of justice, never insulting. 


THEODORE F. BASSETT. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. —Your full name is Theodore F. Bassett? A. —It is. 

Q _And you reside in Barnstable? A. — At Barnstable in the 

village of Hyannis. 

Q — Are you a trial-justice, Mr. Bassett? A . — I am. 


318 HEARING —JOSEPH M. DAY. [March, 

Q. — How long have you occupied that office ? A. — Some twelve 
years or more. 

Q. — How long have you known Judge Da3 T ? A .— Well, I 
think some twentj’-five 3*ears. 

Q. — And during these twent3*-five 3*ears have 3*ou met him fre¬ 
quent^ 7 , or not? A. — I have. 

Q. —Under different circumstances? A. —Yes, sir. 

Q. —Have 3 011 ever seen him at any time when he was under the 
influence of, or affected b3* the use of, intoxicating liquors, so far as 
3011 could perceive? A. — I never have. 

Q. —Have 3*011 had business in his court? A. —I have. 

Q. — How much business have you had in his court approximately ? 

A — Well, I have had some four or five cases of administering on 
estates, and one as guardian. Besides, I have been present to assist 
my mother and others. 

Q. — In other cases than those where 3*011 were one of the parties ? 
A. —Yes, sir. 

Q. — Have 3 T ou had occasion to notice his demeanor towards par¬ 
ties in his court doing business before him? A. —I have. 

Q. — What can 3 T ou say of his conduct towards such persons? A. 
— 80 far as m3* observation goes, it has alwa3*s been very courteous 
and gentlemanly; and, as far as I am concerned m3*self, he has 
always appeared willing to assist, or answer aii3* proper question. 

Cross-Examination by Mr. King. 

Q. —In these twent3*-five 3 r ears, or during the twenty-three 3*ears 
that he has been judge, you have had four or five cases, have 3*ou, in 
his court? A. —Yes, sir. 

Q. — And I suppose that ordinarily, w*hen 3*011 have been there, 
3*011 have attended to 3*our own business, and then you have gone to 
Hyannis when 3~ou left? After 3*0111* business was done, 3*011 did not 
stay around the probate court? A. — Ver3 T often I have staid there 
perhaps two hours or more, waiting until the train goes at half-past 
eleven. 

Q. —You sta3 r around the court-house? A. —I might go out into 
other rooms. 

Q. —When you sta3* at the court-house, 3*011 are in the clerk’s office 
and the register of deeds’ office? A. — Yes, sir. 

Mr. King. And all about there? I will not ask 3*ou an3 T more 
questions. 


1882.] 


SENATE — No. 150. 


319 


CHARLES C. BURSE. Sworn. 

Direct Examination by Mr. Burdett. 

—Your full name is Charles C. Burse, is it not? A. —That is 
my name, sir. 

Q. —You live in Barnstable? A. —In Cotuit. 

Q. —A part of Barnstable. How long have 3'ou lived in Cotuit? 
A. —Forty years. 

Q. —Are you postmaster at that place now? A. —I am, sir. 

Q. —Were 3*011 formerly selectman of Barnstable? A. — Yes, sir. 

Q. — Have 3*ou been sheriff of the county of Barnstable? A. — 
Yes, sir. 

Q. —How long have 3*011 known Judge Da3*? A. —Ever since he 
has been in Barnstable, — a good many 3 T ears. 

Q. —Have 3*ou met him frequently during that time, or not? A. 
— Yes, sir: quite frequentty. 

Q. — Have you done business in the probate court? A. —Yes, 
sir. 

Q. —To what extent? A. — lam not prepared to tell the num¬ 
ber of cases, as some I have noticed here ; but I should think I have 
had twenty or thirty during the time he has been there in the probate 
court. 

Q. —Have 3 t ou attended probate court when 3’ou were not a party 
to an3* case yourself? A. — Yes, sir. 

Q. —Not generally? A. — No, sir. 

Q .—Now, can you state whether 3*ou have ever seen him at all 
under the influence of, or affected b3 T , the use of intoxicating liquors, 
so far as 3’ou could perceive? A. — No, sir. 

Q. — Have 3*011 noticed his bearing toward parties doing business 
in his court? A. —I have noticed it, as I should in an3 r other court, 
of course. 

Q. —Will 3 r ou state what his conduct has been, so far as your ob¬ 
servation goes ? A. — So far as I know, it has been very courteous 
and kind. It certainly has been so to me, and I have seen nothing 
to the contrary in regard to others. 

Cross-Examination by Mr. King. 

Q .—You are a man, Mr. Burse, who ordinarily expects pretty 
civil treatment from people doing business with you, are you not? 
A. — I like to be treated civilly, and I propose to treat other people 
so. 

Q. —That is your method : you are prompt and decided. When 
you go into probate court, you generally have your papers and busi¬ 
ness well in hand? A. — 1 mean to. 


320 


HEARING —JOSEPH M. DAY. [March, 


Q. — And you ordinarily do? A .—Ido, I think. But Judge Day, 
let me say, is pretty particular: lie has had occasion to show things 
to me. 

The Chairman. Answer the question as you are asked to do it. 

Mr. Burdett. I will give you an opportunity to state that. Now 
you may state, sir, what you were about to say. 

The Witness. Well, I was only saying, that, when I supposed my 
papers were all right, sometimes Judge Da} 7- would not exactly find 
fault, but suggest that some little thing should be done to make them 
a little more perfect; that he is pretty particular about that. 

Q. (By Mr. Burdett.) —In other words, he requires that the 
business before him shall be done correctly as far as possible? A. 
— I think so. That is my idea. He is particular; more so than 
some others I have done business with in probate courts in the city 
of Boston. 

FREDERICK PARKER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. —Your full name is Frederick Parker? A. —Yes, sir. 

Q. — And you reside where? In West Barnstable. 

Q. — What is your business? A. — I am a merchant, or trader, 
whichever you might like to call it. 

Q. — How long have you known Judge Day? A. —Ever since he 
resided in Barnstable, I think. 

Q. —Have you met him frequent!}’? A. — I think I have. I am 
pretty often in Barnstable, and I think I have met him quite often. 

Q. — Have you had any business before his court? A. — I have. 

Q. — Have you attended court with any frequency during the period 
that he has been judge? A. —I think I have attended there a great 
many times in the course of the twenty .years. I have had some 
cases, and have been there to assist others. If you will allow me to 
say it, I have written a good many wills, and been there outside as 
a witness, sometimes having to wait a good while for people before we 
could get our wills approved. 

Q .—There is a rush of people from that county to the probate 
court there, isn’t there? A. —There is at times for a few hours. 

Q. — People desire to go upon certain trains? A. — Yes, sir: the 
people in Barnstable usually have to wait for the Cape people below’. 

Q. — So that in that way you have had an opportunity to observe 
his bearing? A. — I have some, — considerably. 

Q. —Now, will you state whether you have ever seen him at all 
under the influence of, or affected by, the use of intoxicating liquors, 
so far as you could perceive? A. — I never have : no, sir. 


1882.] 


SENATE —No. 150. 


321 


Q. — Will you state what his conduct has been to parties in court? 
A. — I never saw any thing but courtesy. I have seen him do busi¬ 
ness hastily, sometimes quite in a hurry to despatch business well; 
but I never saw any thing that struck me as improper at all. 

Q.—Now, a question which I meant to have asked in the other 
connection : can you recall any instance, to which you have been a 
witness, in which Judge Day has refused to use intoxicating liquors? 
A. — Well, I can, one. 

Q .—To what do you refer? A. —I refer to a flag-raising in 
West Barnstablt^last fall, in the campaign in October, in the latter 
part of October, I think. Judge Day was there — 

Mr. King. I would ask if these instances are competent. If they 
are, I shall not object. 

The Chairman. I think we will hear the witness. 

Mr. Burdett. You may proceed. 

The Witness. Judge Da} 7 was there as one of the speakers, and I 
think he had been speaking somewhere else, — in Fall River, or some¬ 
where else, in the afternoon. He got there late, and I think he had 
been speaking elsewhere. He was one of the speakers, and the meet¬ 
ing was held until about ten or eleven o’clock. There were a number 
of speakers in the hall. After the meeting was through, one of the 
citizens there invited me, — I put myself first, — invited the speak¬ 
ers, myself among the rest, to go in and take supper. It was about 
eleven o’clock. And he had on his sideboard whiskey and wine, and 
I don’t know but other spirits. He invited all to take it that wanted 
to ; and it was noticeable among them that some took some of it. 
But I noticed particularly that Judge Day did not take any thing at 
all. That is the only instance I know. 

Q. — Is that the only instance where }’ou have seen liquor offered 
to Judge Day? A .—I think it is. I do not remember any other 
instance where there was any liquor offered to any of the company 
present where Judge Day was present. I do not remember any other 
instance. 

RALPH P. E. THACHER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. —Will you give your full name, Mr. Timelier? A. — Ralph P. 
E. Thacher. 

Q. —What is your profession, Mr. Thacher? A. —I am a clergy 
man. 

Q. — Belonging to what denomination? A. —Unitarian. 

Q. — Where do you now reside ? A. — I now reside in Cambridge. 


322 


HEARING —JOSEPH M. DAY. [March, 


Q .—And have you ever resided in Barnstable? A .—I resided 
in Barnstable nearly four 3*ears. 

Q: — What were those four years ? A. —The last four. 

Q. — Up to the present year? A. —Up to the present year. 

Q. — And did you know Judge Day during your residence at Barn¬ 
stable? A. — I knew him veiy intimately. 

Q .— Where did you meet him ? A. — I met him in many places. * 
I met him at his own house; I met him at our neighbors’ ; I met him 
at the sociables of the parish ; I met him at the choir-meetings, and 
at meetings where we met to practise for oratorios and for concei ts ; 

I have met him in his office, in the courts, on the street, and we have 
taken walks together. I fancy I must have met him at least a thou¬ 
sand times in these four 3*ears. 

Q. — And were you intimately acquainted with him so far as one 
man can be acquainted with another, living in different houses? 
A { — I think so. 

Q. —Will 3*011 state, Mr. Thacher, whether 3*011 have ever seen him 
under the influence of, or affected b3*, the use of intoxicating liquors, 
so far as 3 T ou could perceive? A. — I never have. 

DANFOETH S. STEELE. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Burdett. 

Q. —Will you give your full name? A. — Danforth S. Steele. 

Q. — Where do you reside ? A. — At Harwich. 

Q. — Have 3*011 been a selectman of that town ? A. — I have, sir. 

Q. — And has the probate court for that county ever been held in 
3 T our house? A. — It has. 

Q .—And for how long a period of years? A. — Well, three or 
four 3 T ears. I cannot tell exactly. 

Q. —The three or four 3’ears last past? A. — Three or four years, 
yes, sir. 

Q. — How long have 3*011 known Judge Day, Mr. Steele? A. — I 
have known him twenty 3*ears sure. 

Q. — Have 3*011 met him frequently during that twent3 T 3 T ears? A. 

■ —Well, eight or ten times a year. 

Q. — Have 3*011 met him more or less frequently within the last 
three years than during the years previous to those three? A. —I 
should think not. 

Q. —I say, more or less frequently? A. — Well, sir, the probate 
court would make a difference. Perhaps T have met him twice more 
a 3 r ear than previous^*. 

Q. —Now, have 3*011 ever seen Judge Day when he was under the 


1882.] 


SENATE — No. 150. 


328 


influence of, or affected by, the use of intoxicating liquors, so far as 
you could perceive? A. —Never in my life, sir. 

Q. — Have you seen him hold his probate court in your house? 
A. —Yes, sir. 

Q. — Will you state what his conduct has been, so far as you have 
observed, towards those who have had business before him as probate 
judge? A. — So far as I know, it has been very courteous and hon¬ 
orable. 

Cross-Examination by Mr. King. 

Q. — Mr. Steele, have you been conferred with about your testimony 
here? A. — Not a word. 

Q. — By anybody? A. —Not a word by anybody. 

Q. —Nobod} 7 has said a word to you? A. —No, sir. 

• Q. — At an} 7 time ? A. — At any time. 

Q. — Before you came, or after you got here? A. —No, sir, not a 
word. 

Q. —No person has mentioned it to you? A. — Not a word. 

Q. — Who summoned you ? A. — Mr. Pope. 

Q. —You didn’t know that you were going to be summoned? A. 
— No, sir. 

Q. — And since you came, no one has said any thing to you ? 
A. — I did not know any thing about it until they handed me the 
summons. 

Q. — Since you came have you said any thing to anybody ? A. —• 
No, sir. 

Q. —And nobody to you? A. — No, sir. 

Q . (By Mr. Pope.) — You mean one of the messengers? 

Mr. Talbot. Who is Mr. Pope? 

The Witness. He is one of the messengers here at the State 
House from Sandwich. 


WATSON B. KELLEY. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

q, _Will you give your full name ? A. — Watson B. Kelley. 

Q. — Where do you reside ? A. — At Harwicliport. 

Q, _Are you at present a member of the Legislature? A .—I 

am. 

Q. — Do you know Judge Day, sir? A. — I do. 

Q, How long have you known Judge Day? A. — Twenty years. 

Q, During twenty years have you met him frequently, or other¬ 
wise ? A. —I have met him more or less during fifteen years. 


324 


HEARING — JOSEPH M. DAY. [March, 


Q. — During fifteen years have you met him with great frequency? 
A. — Perhaps a dozen to twenty times a year. 

Q. —Have 3*011 had business with him during that time? A. — I 
have had business with him in his probate court. 

Q. — Now, will 3*011 state, Mr. Kelle}', whether you have ever seen 
Judge Da}^ when he was under the influence of. or affected by, the 
use of intoxicating liquors, so far as 3*011 could perceive? A. — Never 
at all. 

Q. —Now will 3*011 state approximately how much business 3’ou 
have had before him as judge of probate? A. — I think I have 
settled five estates in his court, and assisted in two or three others ; 
and I am now acting as guardian for four minors, for which I make 
m3 7 returns once a year. 

Q. — Will you be good enough to state what his conduct has been, 
so far as you have observed it, towards yourself and those who have 
appeared as parties *or witnesses in his court? A. — Always in a 
very business-like wa3\ He alwa3’s used me with the greatest cour- 
tes3 T . 

Q. —Have 3*011 noticed his treatment towards others? A. — 
Nothing unusual; no more than in a business-like wa3*. 

Mr. Burdett. That is all. 

Cross-Examination by Mr. King. 

Q. — Mr. Kelle3 7 , have you talked about Judge Da3*, as to his 
fitness for the office which he now holds, within the last three or four 
months? Have you said an3 r thing to other persons as to the fitness 
of Judge Da3* for the office which he now holds? A. —A good many 
persons have mentioned it to me. 

Q. —I ask you, if you, in the cars, coming up and going down, 
have mentioned to other people whether or not you consider Judge 
Da3’ a fit man for his office. A. — I have thought he was fit for his 
office. 

Q. — Haven’t 3*011 said you didn’t think he was fit for his office? 
A. — I have no recollection of it. 

Q. — Nothing of that kind ? A. — No. 

Q. — Nothing that could be construed into any such meaning? A. 
— For the last month I have been travelling. There has been a 
good deal said to find out how I stood on this matter. 

Q. — I know. I won’t ask 3*011 that, but whether you have not, 
upon the cars, talked with certain persons, and said substantially that 
3 T ou did not think Judge Day was a proper man for judge of pro¬ 
bate? A. —Well, at different times, if you will allow me to answer, 
people have said that to me in regard to Judge Da3*, and I might 
have assented, not to make an3* decision either way ; and then other 


1882.] 


SENATE —No. 150. 


325 


people say, “ I think he is a good man for it.” Of course they have 
been attempting to know how I stood on this matter ; and I told 
them that it was before our House, and of course I did not express 
any opinion at all. 

Q • — Then, } t ou are aware, Mr. Kelle}’, that you have so responded 
to people who have addressed 3’ou so as to leave them the impression 
that you did not think he was a fit man for this place? A. — I do 
not think I have. 

Q . — Well, was not that the meaning which you meant to convey 
when people addressed you in that way? A. — 1 was not disposed 
to go into an3 T argument until after hearing the case. 

Q. —I know ; but go a little further : whethe ror not you did not, 
in conversation, give people the idea, understanding that you were 
giving them the idea, that 30U did not regard Judge Day as a fit man 
for his place? A. — I never have, to m3 r knowledge. 

Q. — Well, then, what precisely did 3*ou mean when 3 t ou said, that, 
when people stated that to you, 3'ou assented to the proposition? A. 
— I don’t know that any person has used an3 T such conversation with 
me on the cars. 

Q. — I know ; but I understand 3*011 to say that the3 f did. A. — A 
man would sa3*, u You know that Judge Da3 7 is so and so.” I would 
sa3 f , ‘ k I don’t know any thing about it.” 

Q. — I am recalling 3*011 to 3*0111’ own testimony when 3’ou stated 
that the3 7 said that he was not a fit man for his place. You don’t 
think 3’ou said an3* thing or did an3 T thing which would be so con¬ 
strued ? A. — No, I do not. 

Mr. King. That is all. 


JAMES S. HOWES. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. —Your full name? A. — James S. Howes. 

Q. —You reside where? A. — At East Dennis. 

Q. —How long have you resided in Barnstable County? Q. — All 
my life. 

Q. —What, sir? A. — Always in Barnstable County. 

Q. —And are you at present one of the county commissioners? 
A. — Yes, sir. 

Q, — How long have 3*011 been a count3 r commissioner? A. -— Six¬ 
teen or seventeen 3*ears. 

Q. — Do you know Judge Day? A. — Yes, sir. 

Q: — How long have you known him? A. —Going on twenty-five 
3’ears. 


326 


HEARING —JOSEPH M. DAY. 


[March, 


Q. — Have 3*011 ever seen him when he was under the influence of, 
or affected b} r , the use of intoxicating liquors? A. —No, sir. 

Q. —Have 3*011 ever had an3* business before him as judge of pro¬ 
bate ? A. — I have had some, sir. 

Q. — Have 3*011 had an3* occasion to notice what his conduct was 
towards persons having business in his court? A. — He has been 
courteous, as far as I have seen. 

Cross-Examination by Mr. King. 

Q. — Courteous, so far as you know, Mr. Howes? A. —Yes, sir. 


ERASTUS CHASE. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. — You reside where ? A. — Harwich. 

Q. — What is 3’our business? A. —Postmaster and merchant. 

Q. — How long have 3*011 resided there? A. —I am fifty-five 3*ears 
old, and have lived there forty-five 3’ears. 

Q. —How long have 3*ou known Judge Da3*? A. — I made his 
acquaintance in 1852, I think. 

Q. —Have 3*011 met him more or less in that time? A. — I have. 

Q. — Have you seen him when under the influence of intoxicating 
liquors, so far as you could see? A. — I have not. 

Q. — Have 3*ou had an3* business in the probate court? A. — I 
have. , 

Q. — Have 3*011 had occasion to notice his method of doing busi¬ 
ness, and his treatment of parties before him? A. —I have. 

Q .—What would you sa3 T in regard to his conduct? A. — His 
conduct has been gentlemanly so far as 1113* observation goes. 


SMITH K. HOPKINS. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. —You have previously testified, have you not? A. — I have. 
Q .—Are you clerk of the Superior Court of Barnstable County? 
A. — I am, sir. 

Q —Have you the docket of the court for 18G6 and 1867? A. — 
I have. 

Q. — State whether there appears on the docket the date of the 
rescript in the case of Harrison v. Swift; or, if you have the rescript 


1882.] 


SENATE —No. 150. 


327 


itself, we will have that instead. [Witness produced the paper.] 
A. —That is the rescript. 

Mr. Burdett. I desire, Mr. Chairman and gentleman, to give you 
the substance of this rescript, and then put it in evidence. It is 
rescript numbered u 294, Supreme Judicial Court for the Common¬ 
wealth. Rescript Barnstable County. Emily Harrison v. Noble P. 
Swift. Barnstable, ss. Returned and filed Oct. 24, A.D. 1866. - 
Attest: James B. Crocker, Clerk.” That is the indorsement on the 
back of the rescript. The order of the court is as follows : — 

“ Ordered, That the clerk of said court, in said county, make the following 
entry, under said case, in the docket of said court: viz., ‘ Exceptions overruled. 
Judgment to he entered on the verdict, as of the last September term of the 
Superior Court for said county of Barnstable’ (1866). 

“ By the Court. 

“ Oct. 22, 1866. “ GEORGE C. WILDE, Clerk.” 

And there follows a brief statement of the reasons and grounds of 
the decision. That rescript we offer in evidence. 

[The paper was put into the case.] 

Q. — Please turn to the docket, and see if there is an entry of the 
date the rescript and reasons were filed in your court? A. —There 
is an entry to this effect: — 

“Oct. 22, 1866.—Exceptions overruled. Judgment to be entered on the 
verdict, as of the last September term of the Superior Court for said county of 
Barnstable. See rescript on file. Judgment as of this term,” 

This is the September term, 1866. 

Q. —So that the date of the rescript is Oct. 22, 1866, and the 
filing date of the 24th of October, 1866? A. — I don’t so understand 
it. There appears to be no date of the filing. 

The Chairman. The rescript seems to show when it was filed. 

Q. (By Mr. Burdett.) —It appears from the indorsement of the 
then clerk that it was filed Oct. 24, 1866? A. —Yes, sir. 

Q. —I will ask you concerning another matter. Have }’Ou any 
entry in your docket of a case of Young v. Young, being a petition 
for partition of real estate ? 

The Chairman. That has already been put in ; but there may be 
some particular matter pertaining to it. The clerk gave us the sub¬ 
stance of the docket. 

Mr. Burdett. I am going to call his attention to a particular 
thing. 

Q. — What is the date of the entry? A. —October term, 1873, is 
the entry of “ neither party.” This is the docket I was looking for 
when I answered Mr. King’s question, stating there was nothing 
there that appeared to show any disposition of the case. 


328 


HEARING —JOSEPH M. DAY. 


[March, 


Q. — Upon more careful examination yon find that there was an 
entry of “ neither party ” ? A. — Yes, sir. I had seen this docket 
before I testified before, and knew there was something relating to 
the disposition of the case ; and, when Mr. King questioned me, I 
said there was nothing appearing to indicate that the case had been 
disposed of on that particular docket. 

, Q. — Well, Mr. Hopkins, can }*ou give us the dates of the entr} T of 
the case, and entry of “neither part}'” ? A. — It was entered at 
the April term, 1873, and “ neither part}'” was entered at the Octo¬ 
ber term, 1873. 

Q. — I understood 3*011 to sa}*, when 3*011 were testif}dng the other 
da} T , that the practice in your court, whenever a rescript comes down 
between terms, is to enter the case upon the docket until the ensuing 
term, and judgment is made out, and goes upon the next term? A. 
— I think, sir, that has been the practice. 

Q. — Do 3’ou know of an}* case in which that has been done? 
A. — I could not specif}* any particular case ; but I have an idea that 
it has been the practice, whether right or wrong. 

Q.—You don’t vouch for its being correct practice? A .—I 
don’t want to express an opinion as an expert upon that question. 
Mr. Willard or Mr. Noble will tell you better than I can. 

Q. — Will }'ou try to recall an}* case in w'hich that has occurred in 
}'our court? and I will be obliged to 3*011. 

Xhe Chairman. The witness has already testified that he cannot 
recall an}* particular case ; but it has been the general practice. 

Mr. Burdett. I want him to recall any particular case. 

Witness. I don’t seem to remember any particular case. 

Q. —To your recollection, has there ever been a case since }*ou 
have been clerk of Barnstable, as in the case of Harrison v. Swift, 
in which the Supreme Court has sent down a rescript of a judgment 
entered as of the following term? A. — I don’t remember an}^ such 
case. 

Q. (By Mr. King.) —Don’t you remember any such case? A. — - 
No, sir, I do not. * 

Q. (By Mr. Burdett.) — Will you be kind enough to look at the 
record, and see if 3011 find such a case? A .—Yes, sir. I under¬ 
stand that when a case is continued nisi , and judgment is ordered to 
be entered as of the last term, it is so entered. 


1882.] 


SENATE —No. 150. 


329 


LOIS B. TABER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q . — What is your full name, madam? A. — Lois B. Taber. 

Q. —Where do you reside, Miss Taber? A. — At Sandwich. 

Q. — And have you ever been to the probate court in Barnstable 
• County? A. —Yes, sir. 

Q. — How many times? A. — Twice. Twice before Judge Da} T . 

Q. — What were the matters on which you appeared before him; 
that is, the general nature of them? A. —To be appointed execu¬ 
trix of the estate of m3 7 father, and to give in my final account. 

Q. —Was your treatment by Judge Day gentlemanly, or other¬ 
wise? A.- —Perfectly gentlemanly. 

Q .— Did 3x111 observe, while 3'ou were at the court there at this 
time, any treatment of aii3 r bod3 r that 3'ou considered other than 
gentlemanly and kind in airy instance? A. — Not the slightest. 

S 

CORNELIA W. BACON. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. — Your full name? A. — Cornelia W. Bacon. 

Q. — Y r ou reside where ? A. — At Hyannis. 

Q. — Have 3x111, Mrs. Bacon, ever had occasion to go to probate 
court when Judge Day was sitting as judge? A. —Yes, sir. 

Q. — In how man3 T instances? A.—-Well, I should think five or 
six : I cannot tell exaetty. 

Q. — Have you been there on probate business? A. —Yes, sir. 

Q. — How have 3x311 been treated by Judge Day? A. —Very 
kindl3 r . 

Q. — Have 3x111 ever observed any treatment of other people that 
you considered other than gentlemanly and kind? A. — No, sir. 


CHARLOTTE E. TAYLOR. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. _What is your full name ? A. — Charlotte E. Taylor. 

Q. _You reside at what place? A. — Yarmouthport. 

Q. _Have 3x311 had any business in or been before the probate 

court? A. —Yes, sir. 

Q. — How man3 7 times ? A. — Twice. 


330 


HEARING —JOSEPH M. DAY. [March, 


Q .—Will 3'ou state what your treatment has been on b.ehalf of 
Judge Day? A. —Very kindly. 

Q. — Have 3 r ou ever noticed any conduct of his towards others that 
has been other than of the same character? A. — I have not. 


SARAH T. CROWELL. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Burdett. 

Q. —What is 3’our full name? A. — Sarah T. Crowell. 

Q. — Where do you reside? A. —At West Dennis. 

Q. —Have 3 t ou ever been before Judge Da3 r as judge of probate? 
A. — Yes, sir. 

Q. —How many times? A. — Well, I don’t remember the exact 
number. 

Q. — More than once ? A. — Yes, sir. 

Q .— Give us, as nearly as 3*011 can state, about how man3 r times 
3 t ou have been in his court. A. — I have been there five or six times, 
I should think. 

Q .— What has been Judge Day’s treatment of 3x111 when you have 
been there on business? A. — He has alwa3*s used me very kindly. 

Q. — And what can 3x111 sa3 7 of his conduct, so far as 3*011 have ob¬ 
served it? A. — I have not seen aii3 T thing out of the wa3 T whenever 
I have been there. 

LYDIA B. DILLINGHAM. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Burdett. 

Q. —Your full name, Mrs. Dillingham? A. —Lydia B. Dilling¬ 
ham. 

Q. —Where do you reside? A. —At West Falmouth. 

Q. — Have 3x111 had any” occasion to go before Judge Da3 ? as judge 
of probate ? A. — I have. 

Q. — How man3 r times ? A. — Once or twice. 

Q. —Will 3 T ou state what his treatment of you has been? A .— 
Veiy kind and courteous. 

Q,- —What has been his conduct towards other parties in his court, 
so far as 3x111 have been able to observe? A. — Very gentlemanly 
indeed. 


1882.] 


SENATE—No. 150. 


331 


RUTH B. BAKER. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q • — What is your full name ? A. — Ruth B. Baker. 

Q • — Where do you reside ? A. — At South Dennis. 

Q ■—Have 3’ou ever had occasion to go to probate court before 
Judge Day? A. —Yes, sir. 

Q. — In how many instances? A. —Four or five, I think. 

Q • — What has been your treatment by him? A. —Very kind. 

Q. — Have you observed his conduct toward others? A. — Not 
particularly. 


ELIZABETH C. NORRIS. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. — What is your full name? A. — Elizabeth C. Norris. 

Q. — Where do you reside ? A. — At Barnstable, 

Q. —Mrs. Norris, are 3011 frequently in probate court? A .—I 
am there always, and have been for five years. 

Q. —Are you employed there? A. —Yes, sir. 

Q. — Now, Mrs. Norris, I think you have stated that you have 
been in the probate office about five } r ears ? A. — I have been there 
five years constantly, and I have been ten 3 r ears in the building. 

Q. — Now, will you state whether or not, during that period of 
time, 3 r ou have ever seen Judge Da3 T under the influence of, or affected 
b3% intoxicating liquors, so far as you could see? A. — No, sir. 

Q. — Your answer is what? A. — No, sir. 

Q. — What can you say of his treatment of people having business 
in his court? A. — Well, I think generally he is ven T kind. 

Q. — Is he firm and business-like? A. — Veiy. 

Q. — How much is Judge Day in the probate office? A. —He is 
there nearly all the time when he has business. 

Q. — Now, do 3^ou speak in reference only to when probate courts 
are held ? A. — No : at other times. 

Q. (By the Chairman.)—I s that his regular business office? 
A. — Yes, sir. 


Cross-Examination by Mr. King. 

Q. — Let me ask if you remember the instance of a woman faint¬ 
ing awa> T in the probate office a few 3’ears ago? A. — No, sir. 

Q. — Was not there a case where a woman in the probate court 
fainted awa3% and there was quite a scene in court in consequence of 
it? A. —I was not there : no, sir. 


332 HEARING—JOSEPH M. DAY. [March, 

* 

Q. — You never heard of it, did you say? A. — I sa } 7 I was not 
there at the time, and I do not know am’ thing about it. 

Q. — Then, you have never heard of it? 

Mr. Burdett. Suppose she has. 

The Witness. Yes, sir : I have heard of it. 

Q. — Well, how long ago did } t ou hear of it? A. — Not but a 
very short time ago. 

Q. — Could you say about how long ago? A. — I do not know : 
not but a short time ago. 

ROBERT W. CLARK. Sworn. 

[Testimony taken in 1881.] 

Direct Examination by Mr. Burdett. 

Q. — Your full name is Robert W. Clark, is it not? A. — Yes, 
sir. 

Q. — Where do you reside? A. — At Sandwich. 

Q. — Are you emplo} T ed on the Old Colony Railroad? A. — Yes, 
sir : I travel on the train. 

Q. — How long have you travelled on the railroad? A. — It will 
be twent } 7 years next April since I first went on there. 

Q. — Are } t ou pretty generalh- acquainted with the construction of 
the cars running out from Boston on the four o’clock train? A .— 
Yes, sir. 

Q. — Or any train, I mean, that is run out from Boston on the Old 
Colon } 7 Railroad, going to Barnstable, commonl } 7 known as the Cape 
train, in the afternoon? A. — Yes, sir. 

Q. — Have you been acquainted with them for the last ten vears ? 
A. — Yes, sir. 

Q. — Will you state whether there are any water-tanks carried on 
those cars? A —Yes, sir. 

Q. — In what portion of the cars? A. — Generally in one end of 
the cars. 

Q. — What cars do you speak of? A. — Smoking-car. 

Q. — The smoking-car? A. — Yes, sir. 

Q. — On any other than the smoking-car? A .— Yes, sir: there 
is a water-tank in the baggage-room of the Hyannis car. 

Q. — Now we will confine your answers to passenger-cars. On the 
cars used strictly as passenger-cars, has it been the practice of the 
company to carry water for the passengers for the last ten years ? 
A. — No, sir. 

Q. —Are there any closets on the cars where water can be ob¬ 
tained ? A. —Not to my knowledge. 

Q. — Won’t you state just what your business is? A. —News 
agent. 


1882.] 


SENATE —No. 150. 


333 


Q. — Is it your business to pass back and forward through the cars 
constantly? A. —Yes, sir. 

Q. —And in that way to become acquainted with their build and 
conveniences ? A. — Yes, sir. 

Q. — Is there anybody else that 3 T ou can name that would be apt to 
be more familiar with the construction of the cars running out on the 
trains on which you run? A. — I don’t know. There are men that 
run every day with me. 

Q. — But do you know anybody apt to know more certainly as to 
whether or not these tanks exist than yourself? A. — I do not know 
with regard to that. 

Q. —You have seen Judge Day on the cars frequently, or not? 
A. —Yes, sir. 

Q. — How long have you known him, to know who he was? A. — 
Ever since 1 have been on the train. 

Q. — Have you ever known him to drink liquor on the cars? A. — 
No, sir. 

Q. — Have }’ou ever seen him drink on the cars? A. —No, sir. 

Q. — Or under the influence of liquor, so far as you could see? A. 
— No, sir. 

Cross-Examination by Mr. King. 

Q. — I suppose, Mr. Clark, the cars upon that road are changed 
very much in accordance with the amount of travel? There are more 
cars during the summer, are there not? A. — Yes, sir. 

Q .—And different sorts of cars are put on, are they not, from 
other parts of the road? A. — Yes, sir. 

Q. — Cars of different construction? A. —Yes, sir. 

Q. — And about all the varieties of cars that are run on any road 
are run there first and last? A. —Yes, sir, at different times. 

Q. — And you remember particularly that on the ordinaiy cars that 
are run there, there is a water-tank in the ante-room in the end room 
of the Ilyannis car, — always, isn’t there? A. — In the baggage- 
room. 

Q. —Well, it is a little room partitioned oft* from the passenger 
part of the car? A. — That is what we call the baggage-room. 

Q . — Now, in this large variety" of cars that run down there in 
summer season, I take it you would not undertake to say that any car 
on the road did not have a water-tank? A. —No, sir. 

Q. —There may have been a good many? A. — Yes, sir. 

Q. —And there always is water practically in the baggage-room of 
the Hyannis car, — always, isn’t there? A. — That car has not been 
on but a year or two. 

Q, _Well, before that there were other arrangements for water on 

the car? A. —Yes, sir: I have a water-boy who goes through the 
train in the summer. 


334 


HEARING —JOSEPH M. DAY. 


[March, 


Q. —Then, the cars that run there previous to the last year or two 
have had different methods of providing passengers with water? 
A. —I do not remember about that, what there was on the Hyannis 
car before. 

Q. — All the other cars that come upon the road from time to time, 
you can testify to as to water accommodations? A. — The regular 
train is what I am speaking of, that runs every day. 

Q. —Yes ; but the regular train that runs every day in the summer 
season very often has a large number of cars added to it, don’t it? 
A. — Those are what we call extra cars. 

Q. —Very frequently extra cars? And how those are constructed 
in other instances, of course you cannot say? A. — No, sir. 

Q .—You would not undertake, in an}" event, Mr. Clark, to say 
that you know the water arrangements in the cars there so that you 
can swear distinctly about all of them for the last six or eight years ? 
A. — No, sir. 

Re-direct Examination by Mr. Burdett. 

Q. —But seven or eight years ago, Mr. Clark, what was the regular 
way of supplying passengers with water? 

Q. —When did that custom of sending a water-boy through a train 
begin, so far as you know? A. —Oh! it was fifteen years ago, I 
should judge. 

Q. — Do you know any such car that has been run on the road 
previous to the time of the building of the present Hyannis car? 
A. — No, sir: I should not want to say. I do not remember. 


ELIZABETH F. DAVIS. Sworn. 

Aj"— 

[Testimony taken in 1881.] 

4 

♦ 

Direct Examination by Mr. Burdett. 

Q. —Your full name? A. — Elizabeth F. Davis. 

Q. — And you reside in Falmouth? A. —Yes, sir. 

Q. — Do you know Judge Day? A. — Yes, sir. 

Q. — Do you know how often he comes to Falmouth to hold probate 
court? A. —Once a year. 

. Q. — In what month? A. —November, I think. 

Q .—Now, do you remember his coming in November, 1879 ; that 
is, a year ago last November? A. — Yes, sir. 

Q. — In what business was your husband at that time ? A. — 
Hotel-keeper. 

Q. — Did he keep a hotel at Falmouth? A. —Yes, sir. 

Q. — And you were at the hotel at the time of the holding of the 
probate court in November, 1879 ? A. —Yes, sir. 


1882.] 


SENATE —No. 150. 


885 


Q • —How did lie come to town, do you know? A. — He came in 
the cars. 

Q . —That is, down from Cohasset Narrows? A. —Yes, sir. 

Q ■ — Was aii3 7 body else there with him that night? A. — His wife 
and son. 

Q . — How did the}’ come to the hotel ? A. — They came in a team, 
I think. 

Q. — What time w r as it that the train arrived at Falmouth, so far 
as you recollect? A. — Seven o’clock. 

Q. — What time was it that Judge Day arrived at your house, as 
nearly as you can recollect? A. —Perhaps ten or fifteen minutes. 

Q. —Was his son there before->l}e got,there? A. —Yes, sir. 

Q. — And his wife? A. — Yes, sir. 

Q. —Will you state whether or not, so far as you could see, Judge 
Day was affected by, or under the influence of, intoxicating liquor? 
A. — I saw nothing of the kind, r 

Q. —What is it? A. — Nothing of the kind. 

Q. — Do you remember how the evening was passed by Judge Day 
and his family? A. —Yes, sir. We were all there together, — the 
family, and his wife and his son. 

Q . — During the evening did } T ou notice any signs of the excessive 
use of intoxicating liquor? A. —No, sir. 

Q. —No signs of drunkenness? Did you ever live in Barnstable? 
A. — No, sir. 

Q. —How long have you known Judge Da}’? A. —Twenty years. 

Q. — Have you ever seen him intoxicated? A. — No, sir. 

Q. — Or, so far as you could see, under the influence of, or affected 
by, the use of liquor? A. —No, sir. 

Q. — How many nights did Judge Day pass at your husband’s 
hotel in November, 1879 ? A .—One. 

Q. — He held court the next day, did he? A. — Yes, sir. 

Q .—And went away the next afternoon? A. —The next after¬ 
noon. 

Q . — When did his son and wife leave? A. —His wife went with 
him, and his son drove the team away. 

Q. — Who else was present during the evening besides Judge Day’s 
family and yourself? A. —I do not remember anybody. 

Q. — Was your husband present? A. —Yes, sir. 

Q. — Is your husband now living? A. —No, sir. 

Q. —Where were probate courts held in Falmouth? A. — He has 
held them at my house several times. I think that year he did not. 

Q. — And have you ever noticed his treatment of people who were 
before him in probate court? A. — Sometimes I have. 

Q. —And what was his treatment, so far as you have observed it? 
A. —Perfectly gentlemanly. 


336 


HEARING —JOSEPH M. DAY. [March, 


Q. — Now, do you remember whether Mr. Thacher, the register of 
probate in Barnstable, was with Judge Day at this time that 3*011 have 
just been speaking of? A. — No, sir, he was not. 

Q. —He general A came with Judge Day? A. — Yes, sir. 

Q .—Did you ever know Judge Day to come without him, except 
in this instance, to your recollection? A .—Ido not think of any 
other time. 

ELIZABETH NORTHS. Recalled. 

Q. (B3 r Mr. King.) —I want to know if 3*011 have stated at differ¬ 
ent times that Judge Da3* treated people roughly and rudely in his 
court? A. —No, sir. 1 

Q. —Let me ask 3*011, a little more particular, if 3*011 have stated 
in the probate office at Barnstable, at several different times, that the 
judge treated people roughly and rudely in his court, or said substan¬ 
tially that? A. — No, sir. 

Q. —You never said an3* thing of that kind? A. — No, sir. 

Q. — At am* time ? A. — No, sir. 

CHARLES THACHER. Sworn. 

[Testimony taken in 1881 .] 

Direct Examination by Mr. Burdett. 

Q. —I desire to ask you how often Judge Da3 T goes to Falmouth 
to hold probate court? A. — Once a 3-ear. 

Q. — And in what month of the year? A. — November. 

Q. — Do 3*ou know the da3* set b3* law for the probate court to be 
held there? A. — Yes, sir. 

Q. —What is it? A. —The third Tuesda3^. 

Q .—Have 3*011 always been with him when he went to Falmouth? 
A. — No, sir. I have alwa3*s been with him since I have been regis¬ 
ter, except once, in the year 1879 , when I was not with him. 

Q. — And with the exception of that 3*ear 3*ou have been with 
him? A. —Yes, sir. 

Q. — Where did 3*011 stop in Falmouth last November? A. — At 
Baker’s Hotel, so called. 

Q. — Who kept it? A. — Messrs. Davis and Wood. 

Q. — The 3*ear before that you were not w*itli him ? A. — No, sir. 

Q. — Where did you stop the 3*ear before that, — 1878 ? A. — At 
the Succanesset House. 

Q. — Do 3 r ou know the gentleman who keeps that house? A .— 
Yes, sir: Mr. Swift, 

Q. — How many nights at am^ one time have 3*011 passed in Fal¬ 
mouth ? A. — But one. 


1882.] 


SENATE —No. 150. 


337 


Q • — Eet me ask you, if, on the wa}* to Falmouth, or in Falmouth, 
3 r °u have ever seen Judge Day influenced or affected by the use of 
liquor? A .— Never, sir. 

Q. —Either on the way to Falmouth, or after you got there? A. 
— No, sir. 

Q • — Case No 6,219 is Willard A. Crowell, is it not? A. —Yes, 
sir: Willard A. Crowell. 

Q • — Who was the administratrix of that estate? A .—-Alice 
Crowell. 

Q • — Is that the account that the administratrix rendered? A. —- 
No, sir: it is the inventory. 

Q .—This is the administratrix’ account, is it not? A. —Yes, 
sir : that is the account. 

Q. —Will 3'ou examine those, and see if there is any mention any¬ 
where of a sum of live hundred dollars insurance mone}^? A. —-No, 
sir: there is no mention of five hundred dollars insurance. 

Q. —Is there any mention of any insurance money, so far as you 
can find in the papers? A. —No, sir. 

Q. — I want to ask you a question in regard to the estate of Heze- 
kiah Jones, —- whether there was an} T account rendered after that of 
which we have been speaking? A. — That is the only account ren¬ 
dered. 

Q. — Mr. Thacher, did } T ou do an} r thing about or in relation to the 
collection of five hundred dollars insurance money that Mrs. Crowell 
received after the death of her husband? [Answer interrupted.] 

Q. (By Mr. Burdett.) —Do you know whether Mrs. Crowell 
came to the probate office to see Judge Day? A. —I do. 

Q .—Did she, or not? A. — She did. 

Q. — Was it before or after the collection of this insurance money? 
A. —It was before the collection. 

Q. —Were j r ou present at the interview? A. —I was not present 
at the interview, I think. That I don’t remember particularly about, 
but I think not. I was present when she came and inquired for him. 

Q. (By Mr. Burdett.) —Did you have an interview before the 
collection of this insurance money, before the visit of Mrs. Crowell 
to Judge Daj r , at the probate office, in relation to the collection of 
that rnone} 7 ? A .— I did, sir. 

Q. — Will you state what the interview was? A. —Mrs. Crowell 
sent for me. It was no sister sent for me. 

Q. — Mrs. Crowell sent for you ? A. — Yes, sir. 

Q. — Did they occupy the same house? A. —Yes, sir. 

Q. — And Mrs. Crowell saw you herself? A. —Yes, sir. 

Q. — What did she say about this matter? A. — She said the 
policy was about being issued when Mr. Crowell was drowned, and 


338 


HEARING — JOSEPH M. DAY. 


[March, 


the papers were nearly there; and she wanted to know if there 
could not be something done by some one about getting something 
from the insurance company. I told her I did not know whether 
there could, or not. She wanted to know what she could do about 
it, and I advised her to see Judge Day. 

Q. — You have stated that after this 3*011 saw her go and see 
Judge Day, but don’t remember that you heard the conversation? 
A. — Yes, sir: I think I did not hear the conversation. 

Q. —Mr. Thacher, have you a cop} 7 of the deed from the files of 
your office, from the administrator of Emma F. Stevens to Morse & 
Holmes of Boston? [Witness produced the paper.] 

Mr. Burdett. Mr. Snow testified that this property was sold b } 7 a 
former guardian of Ada Stevens. He was under a misapprehension on 
that point, as we shall show. I want to show that Morse & Holmes 
got their title, not from the former guardian of Ada Stevens, but from 
the administrator of the estate. This deed is dated the second da} 7 
of December, 1872 ; is signed by Asa S. Bliss, administrator; and 
he appears to have been administrator of Emma F. Stevens, accord¬ 
ing to the deed. The deed is to Oliver M. Morse and Levi B. 
Holmes, the consideration being $ 309 . 50 . The deed recites the 
license of the probate court on the twenty-first day of October, 1872 , 
which empowered the administrator to convey certain real estate of 
the deceased, and recites that he had given due notice of intention 
to sell by publication, and taken the oath and given the bonds, and 
that this deed was given in pursuance of that license. 

Q. — Do you know whether or not that was the license upon which 
the sale was made ? A. —T do not know, sir : I only know by the 
papers. 

Q. —Examine the papers, Mr. Thacher, and see if there is any 
license of any kind granted upon the 21 st of October, 1872 , except 
the one to which I have already referred. A. — That is the only 
license under that date. 

Q- — I want to put in this properly attested copy of the deed, 
and make some reference to the covenants in it; and I offer it for 
that purpose now. The covenant which I desire to call attention to 
is this: — 

“And I, the said Asa S. Bliss, for myself, my heirs, executors, and adminis¬ 
trators, do hereby covenant with said Morse & Holmes, that, in pursuance of 
the order of notice aforesaid, I gave notice of intent to sell, and took the oath 
and covenant with-, at the time of sale.” 

Q. — I want to ask Mr. Thacher now, whether any oath is on file, 
such as would warrant any such covenant? A. — No, sir: there is 
no oath among the papers. 



1882.] 


SENATE —No. 150. 


339 


Cross-Examination by Mr. King. 

Q' — Mr. Thaclier, in 1878 , when } t ou went to Falmouth to hold 
probate court, what hotel did you stop at? A. — In 1878 [pausing 
to think] — at the Succanesset. 

Q • — Did you usually stop there ? A. — Yes, sir. Of late we have 
stopped there. But when I was first register of probate, I think, the 
first 3’ear or two we stopped at the house of Mr. Hewins. 

Q • — But you have latterly stopped at the Succanesset House? 
A. — Yes, sir : until this last year, 1880 ; and then at Baker’s. 

Q• — Where did you stop in 1879 ? A. —I didn’t go to Falmouth 
that 3’ear. I was awa3\ 

Q. — Where did you stop in 1877 ? A. — In 1877 , I think, we 
were at the Succanesset House; but I won’t be positive about it. I 
know that on one or two occasions we have stopped at Mr. Hewins’s 
House. 

Q —What occasions were those? A. — It was when I was first 
register, — somewheres in 1874 to 1876 : somewheres along there; 
and the balance of the time we have stopped at the Succanesset 
House, wdth the exception of last 3’ear. And I don’t know where 
the courts were. 

Q. — Was there an occasion when 3 r ou helped him into the carriage 
at the railroad station, for him to go to the hotel? A. —No, sir. 

Q .—Was there an occasion when he was so much under the influ¬ 
ence of liquor, upon his arrival at the station, that 3 T ou had to render 
him assistance? A. — Not to my knowledge. 

Q. — Do 3’ou mean to sa3 T to this Committee that there has not 
been an3 T time when Judge Day has arrived at Falmouth that he has 
been at all under the influence of liquor? A .—I do, as far as my 
knowledge goes. 

Q. —Now let me ask 3’ou if 3’ou have stated to Mr. Higgins and 
to Mr. Harriman, — Mr. Higgins first, — if 3*011 have stated to Mr. 
Higgins at the probate office in Barnstable, somewhere about two 
3’ears ago, — I cannot fix the time exactty, — but have you stated to 
Mr. Higgins that Judge Da3 T was so drunk upon arriving at Fal¬ 
mouth, that 3*011 had to help him into the carriage to go to the hotel? 
A. — No, sir. 

Q. —You never said an3 r thin£ of that kind? A. — No, sir. 

Mr. Burdett. Is that Jonathan Higgins ? 

Mr. King. Yes, sir. 

Q. — Now, let me ask 3 t ou if 3 T ou said to Mr. Harriman somewhere 
about two years ago, that Judge Day was so full when he arrived at 
the station in Falmouth, that you helped him into the carriage to go 
to the hotel? A. —No, sir. 




340 


HEARING —JOSEPH M. DAY. [March, 


Q. —Nothing of that sort? A .—I have no recollection of ever 
saying any thing of that sort. 

Q. —Won’t you be careful, and try to recall whether }’ou said any 
thing of that kind? A. — No, sir: I know I never did. 

Q. —You know 3’ou never said anything of that nature to Mr. 
Harriman? A. — No, sir; yes, sir, I am positively sure I never 
did. 

Q. —You know 3’ou never did? A. —Yes, sir. 

Q. — Let me ask 3*011 if 3’ou ever saw Judge Da3 7 at the billiard- 
room under the influence of liquor? A. — Never. 

Q. —Whether or not, some time last summer, 3’ou said, at the 
court-house in Barnstable, that Judge Day was under the influence of 
liquor at the billiard-saloon in Barnstable, or words to that effect? 
A. — I have no recollection of sa3 7 ing it. 

Q. — Will 3’ou be kind enough to state to the Committee whether 
3 t ou recollect that 3’ou have not said it? A. — I think, if I had said 
an3 T thing of the sort, I should recollect it. 

Q. — And have 3’ou said any thing of that sort, at that time and 
place, to Mr. Higgins? A. —Not to m3 7 recollection. 

Q. —You feel sure you haven’t? A. —I feel sure I haven’t. 

Q. — Do 3’ou remember when it was 3’ou called upon Mrs. Willard 
A. Crowell? A. —No, sir, I do not. It was in the evening. 

Q. — What time of the year? A. —I don’t recollect the 3’ear or 
month. But she sent — 

Q. —It is 011I3 7 the matter of time. It was after she had been to 
the probate office in settlement of the estate? A. — I think it was. 

Q. — Now, with reference to the probate court at Harwich, when 
Sophia Hopkins’s license was granted: do 3’ou remember how long 
the judge was at that court, — whether he came down on one train, 
and went back on the other? A. — I think he did, if that was the 
court. There was one court when he went up on one train, and came 
back on the same day. 

Q. —And whether there were a great man3’ suitors, who had come 
from different parts of the count3’ in their carriages, who had to go 
away with their business unattended to? A. — I don’t recollect 
about that; but I think the business was despatched before Judge 
Da3 7 left. 

Q. —Let me ask you another question, Mr. Thacher : whether 3’ou 
remember a controvers3 7 between Mr. Snow and Judge Da3 r in the 
probate office at Barnstable, when Judge Day was under the influence 
of liquor? A. — No, sir: I recollect nothing of the kind. 

Q. — Whether 3’ou stated to Mr. Harriman at the court-house, I 
think, at Barnstable, that there was a controversy between Mr. Snow 
and Judge Da3’, and that Mr. Snow kept his temper remarkabl3 T well, 


1882.] 


SENATE —No. 150. 


341 


ancl that Judge Da } 7 was very rough and insulting in consequence of 
having had too much to drink ? A. — Not at all. 

Q •—Nothing of the sort? A. — Nothing at all. I recollect the 
controversy perfectly well. 

Q- — And you never said any thing to him ? A. — If I said any 
thing, — I recollect the controversy perfectly well, — I don’t recollect 
saying any thing to Mr. Harriman. I have no recollection of speak¬ 
ing to him about it. 

Mr. King. I don’t think there is any thing else. 

Q. (By Mr. Burdett.)—M r. Thacher, there is simply one matter 
of record I should like to have you enlighten me upon, if you can. 
Have you a record of the case of Noble P. Swift in insolvency here? 
A. — I have, sir [producing it]. 

Q • — Will you read the docket entry of the 23 d of April, 1867 , in 
full? A. [Reading.] — “ 1867 , April 23 . Warrant and schedules 
returned. Debts proved. Calvin Crowell was chosen and appointed 
as one of the assignees, and Ebenezer Bacon was appointed by the 
court as another assignee in said case.” 


EUGENE E. C. SWIFT. Sworn. 

[Testimony taken in 1881.] 

Q. (By Mr. Burdett.) —Where do you reside, Mr. Swift? A. — 
Falmouth. 

Q. — And you keep a hotel there? A. —Yes, sir. 

Q. —What is the name of the hotel? A. — Succanesset House. 

Q. — Has Judge Day ever stopped at your house? A. —He has, 
sir. 

Q. — In what seasons of the year? A. —At the time of holding 
the probate court, —October or November. 

Q. — Did he stop there in 1878 , — that is, two years ago last No¬ 
vember? A. —I think so. He has been there, I think, three or four 

A 

times. 

Q. — Will you state, Mr. Swift, whether Judge Day, when there at 
your house, has ever been affected by, or under the influence of, in¬ 
toxicating liquors, as far as you saw? A. — I never saw him, sir, in 
any way under the influence of liquor. 

Q. — Mr. Swift, do you have a depot carriage at the Falmouth 
depot? A. — I do : yes, sir. 

Q. — And can you tell whether or not, in November, 1879 , — that 
is, a year ago last November, — Judge Day rode in your carriage from 
the Falmouth depot up to the other hotel, Mr. Davis’s? 

Mr. King. If you know any thing about it: if you were there. 

The Witness. I can’t state positively about that: I don’t remem- 


342 


HEARING — JOSEPH M. DAY. [March, 


her, sir. He has always rode in m3' carriage when he went to my 
house : whether he did or not when he went to the other place, I don’t 
know. 

Cross-Examination . 

Q. (By Mr. King.) — How long have 3'ou kept this hotel? A. — 
Eight or nine years, sir. 

Q. — How man} 7 times has Judge Da} 7 been to your house? A. — 
From three to five times: I don’t know whether three, four, or five 
times. 

Q. — Well, do you recollect with entire certainty that he was there 
in 1878 ? A .—I don’t. Let me see: last year he was not there. 
The year previous, and the year previous to that, I am certain, he was 
there. 

Q. —He was not there last fall? A. — Not last fall: no, sir. 

Q. — But he was there the two years before that? A. — Yes, sir. 

Q. —Now, how are you able to fix the fact that he was there two 
years before that? A. —From my memory : that is all. 

Q. — That is your general judgment about it? A. — I know it, 
same as I know any thing. I know he was there two years in succes¬ 
sion ; and I know the last year he wasn’t there, and the year previous 
he was there, and the year previous to that. I believe that is correct. 

Q. —He was not there at the last probate court? A. —I am not 
quite positive about that. 

Q. — At the last probate court held in November, he was not at 
your house? A. — No, sir. 

Q. —But the year before that, he was there? A. —He was there 
the year previous. 

Q. —And the year before that? A. — As I remember it: I am not 
quite positive about that. 

Q .—You didn’t drive your own carriage to the depot always, I 
suppose? A. — Not always. I am most always in the carriage: I 
drive it sometimes. 

Q. — Sometimes you are? A. — Sometimes I drive it, and some¬ 
times I don’t: I am most always there with the carriage. 

Q. — And sometimes, I suppose, you are not there ; sometimes you 
send it up? A. — No, sir, I am most always there. I am mail- 
carrier, also; and I have to be there to attend to the mail. 

Re-direct Examination. 

Q. (By Mr. Burdett.j —How often have you known Judge Day 
to be in Falmouth? A. — I don’t know, sir. Five or six times, I 
should think. 

Q .—How many times a year, I mean? A .—I don’t know of 
his being there more than once a year to hold probate court. 


1882.] 


SENATE —No. 150. 


348 


Mr. Burdett at tliis point said that the parts of Judge Day’s testi¬ 
mony of 1881 , which the remonstrants desire to put in, had not been 
determined upon yet, but they would be arranged very soon. 

The Petitioners’ Case resumed. 

The Chairman. Now, if the petitioners are ready to proceed, we 
are ready to hear them. 

Mr. Wadleigh. We offer the deposition of David Burstey, Mr. 
Chairman. 

Mr. Thompson. I do not know what certificate they have. They 
have been conferring with the magistrate without any notice to us 
at all. I don’t understand that this is the regular way to do business 
in taking a deposition. 

At the request of the Chairman, the following report of the pro¬ 
ceedings at David Bursley’s house, written by the justice of the 
peace, Smith K. Hopkins, was read by Mr. Harriman : — 

To the Hon. Committee of the Legislature to whom were referred the Several 

Petitions for the Removal of Joseph M. Day from the Office of Judge of Pro¬ 
bate and Insolvency. 

In the matter of the deposition of David Bursley of Barnstable, the justice 
before whom said deposition was to be taken, submits the following report for 
the information of the Committee: — 

Pursuant to a notice annexed to the deposition or paper herewith transmitted 
(the time of taking said deposition having, by agreement of the counsel for the 
petitioners and the counsel for the remonstrants, been postponed from nine 
o’clock a.m. until half-past eleven o’clock a.m. ), I proceeded on Saturday, the 
fourth day of March, at half-past eleven o’clock a.m., to the dwelling-house of 
said David Bursley, the deponent, in the village of Barnstable, and proceeded 
to take the deposition of said deponent; he first being duly sworn to speak the 
truth, the whoie truth, and nothing but the truth, relating to the cause for which 
his deposition was about to be taken. There were present David Bursley, the 
deponent; and Smith K. Hopkins, Esq., the justice; H. P. Harriman, Esq., 
of counsel for the petitioners; and Thomas II. Talbot and E. W. Burdett, Esqs., 
of counsel for the remonstrants; and Hon. Joseph M. Day, the respondent. 
After proceeding with the deposition (which was by me reduced to writing in 
the presence of the deponent) until fifteen minutes before one o’clock p.m., I 
continued the further taking of the same until two o’ clock p.m., when I again 
met the counsel and the parties above named at the house of the deponent, and 
proceeded with and completed his examination-in-chief, except that the same 
was not read over to him in his presence and hearing. And, at the request of 
the counsel for the petitioners, the name of said deponent (the deponent saying 
he was unable to write his name) was signed to said examination-in-chief by 
H. P. Harriman, counsel for the petitioners; and the signature was witnessed 
by E. W. Burdett, counsel for the remonstrants. After a conference between 
counsel for petitioners and remonstrants, who all desired to take the four o’clock 
p.m. train for Boston, — the counsel for the remonstrants desiring to have time 
granted them to prepare for the cross-examination of deponent, —they made a 
motion to continue the time for cross-examining said deponent until Wednesday, 
March, 8th inst., at half-past eleven o’clock a.m. 





344 


HEARING —JOSEPH M. DAY. [March, 


And Monday being the day of tlie annual town-meeting at Barnstable, and 
Tuesday having been assigned as a day for further hearing before the Committee 
of the Legislature, I deemed the time asked for not an unreasonable one to 
prepare for said cross-examination. And though opposed by the counsel for 
the petitioners, L at three o’clock and forty-five minutes p.m. continued the time 
for completing said deposition and for said cross-examination until Wednesday, 
March 8, at half-past eleven o’clock a.m. 

And on Wednesday, March 8th inst., at half-past eleven o’clock a.m., I pro¬ 
ceeded to the dwelling-house of said Bursley, and was met at the door by his 
son, Francis A. Bursley; and upon inquiring if I could come into the house and 
proceed to finish the deposition of the deponent, David Bursley, I was told, 
that, while he had no objection to my coming into tlie house, I could not be 
permitted to enter the room of Mr. Bursley, the deponent, nor to hold any 
conversation with him; and that the reason for such prohibition w r as the ex¬ 
treme weakness and physical disability of the deponent; and that the prohibi¬ 
tion was by the advice of his physician, who would not recommend further 
interrogation of the deponent; and that, if the physician had been consulted, 
he would not have consented to have had his deposition taken in the first in¬ 
stance. Whereupon, by agreement of counsel, I then and there continued the 
time for completing said deposition until Saturday, the eleventh day of March 
inst., at half-past eleven o’clock a.m., at the dwelling-house of said Bursley. 
And on said Saturday, March 11, 1882, at half-past eleven o’clock a.m., I pro¬ 
ceeded to the dwelling-house of said Bursley; and, upon inquiring at the door 
if I could be admitted, to finish the deposition of said Bursley, I was informed 
by his daughter, then having the care of said Bursley, that under no circum¬ 
stances could I be permitted to proceed to take or finish his deposition; that 
said Bursley was very ill and delirious; that he was delirious on Monday last, 
and had been delirious every day since; that there was no probability of my 
being admitted to complete his deposition. 

Whereupon, at the request of the counsel for the petitioners, previously com¬ 
municated to me by him (neither counsel for petitioners nor remonstrants being 
then present), I then and there adjourned the further consideration of or tak¬ 
ing of said deposition until Monday, the thirteenth day of March inst., at half¬ 
past eleven o’clock a m., at the dwelling-house of said Bursley. 

And on said Monday, March 13, at half-past eleven o’clock a.m., I again 
proceeded to the dwelling-house of said Bursley, and again made inquiry at the 
door of said Bursley’s house, and w r as again informed by said Bursley’s daugh¬ 
ter that said Bursley was very ill; that there was no probability whatever that 
he would ever be able to complete said deposition; that while she could say 
that Mr. Bursley was a trifle more comfortable than when I last called, he was 
not, and probably never would be, able to finish the deposition; and that her 
answer was by reason of the statements of his physician. Neither the counsel 
for petitioners nor remonstrants w^ere present. I therefore made no further 
adjournment, but report the facts for the consideration of the Committee. 

SMITH K. HOPKINS, Justice of tlie Peace. 

Arguments as to the admission of the deposition were then made 
by Messrs. Thompson and Wadieigh. The former opposed the 
proposition of the petitioners to admit the document offered, citing 
in support of his position Fuller v. Rice, 4 Gray, p. 343 ; Greenleaf 
on Evidence, p. 445 ; the Revised Statutes, chap. 9 , sects. 15 - 23 , 
and other authorities. 


1882.] 


SENATE —No. 150. 


345 


Mr. Wadleigh argued in support of admission, citing Gass v. 
Stinson, 3 Sumner, 98 . 

The Committee then took the question of the admission of David 
Burst’s deposition under advisement. 


SMITH K. HOPKINS. Sworn. 

Direct Examination by Mr. Wadleigh. 

Q • —You acted as magistrate on this occasion? A. — Yes, sir. 

Q • — Who were present? A. — Mr. David Bursley, Mr. Harri- 
man — 

Mr. Thompson. I object to this. He has put that fact into the 
certificate. I object to an } 7 thing of the sort being testified to. 

The Chairman. I understand the certificate is in, Mr. Wadleigh? 

Mr. Wadleigh. It is, Mr. Chairman; but inasmuch as I haven't 
read it, and didn’t pay attention to it when it was read, it is rather 
sharp to take me up in this way. 

Q. (By Mr. Wadleigh.) —As to the finishing of the cross-exam¬ 
ination. what position was taken by the two parties present? What 
did Mr. Harriman desire — that the cross-examination ought to be 
then and there finished? A. —I can’t swear that I heard it, or 
understood Mr. Harriman to make any demand for a continuance 
of the cross-examination then and there. 

Q. —Did hemot request that the examination should proceed, and 
did he not say in that connection that he was willing to stay there 
until twelve o’clock at night in order to finish it? A. — Upon my 
oath, sir, I have no recollection of hearing Mr. Harriman say any 
thing of the kind. 

Q. —At whose request was the examination postponed? A. — It 
w r as postponed upon a motion by Mr. Talbot, counsel for the remon¬ 
strants. 

Q. — Was there any discussion with regard to whether it should 
be postponed, or not? A. —There was a discussion between the 
counsel, which I didn’t hear but very little of; and I don’t remember 
it. , 

Q. (By the Chairman.) —Was there any objection made to the 
postponement of it? A. — I don’t remember of any objection being 
made to the postponement of it at that time, but there was objection 
made that it should be continued beyond Monday. Mr. Harriman, 
as I understood, objected to having it continued beyond Monday; 
and I said I would continue it to any time to which counsel would 
agree. If they could not agree, I should continue it to such time as 
I thought proper. 


846 


HEARING — JOSEPH M. DAY. [March, 


Q. (By Mr. Wadleigh.) —Didn’t Mr. Ilarriman say there that 
he would stay till twelve o’clock at night in order to finish it? A. 
— I didn’t hear it. He might have said it, but I didn’t hear it. 

Q. — Did you understand that he desired the cross-examination 
should then proceed? A. — I did not so understand. I understood 
his desire was to return to Boston with the other counsel that day, 
hut he wished to have the examination continued till Monday so that 
he and the other counsel might come from Boston ; but the } 7 didn’t 
agree on Monday or any other time, and consequently I continued 
the examination to suit my own convenience, without regard to any 
party. 

Q. —Now, will you not state whether Mr. Harriman said he was 
willing to stay there and finish that deposition? A. —I will swear 
that I heard nothing of the kind. 

Q. —What did he say in regard to it, — whether he would or would 
not stay? A. —I cannot give his language as to what he said. 
My impression is, that he was very anxious to have it finished on 
Monday. 

Q. —Wasn’t he anxious to have it finished on Saturday? A. — I 
have no remembrance whatever of his expressing any desire to have 
it finished on Saturday — 

Q. — Well, now, was there any discussion as to whether or not 
the witness should be allowed to sign the deposition? A. — If you 
will permit me to answer further the last question. My recollection 
is, that, after the witness signed the deposition, the counsel and my¬ 
self got up to go out of the room, as if by spontaneous intent, and 
that we proceeded into another room. Then the discussion between 
the counsel took place, which I didn’t hear. 

Q. — Wasn’t there a discussion as to whether or not he should be 
allowed to sign at that time? A. —There was a discussion as to 
whether or not he be allowed to si<rn at that time. 

Q. — What was Mr. Harriman’s remark? Did he desire to have it 
signed? A. — He desired to have it signed. Said I to him, “ I feel 
that I am ignorant about this matter: I am in doubt whether it ought 
to be signed now, or wait until it is finished. I then asked Mr. Har¬ 
riman’s opinion, and he declined to give it. I asked Mr. Burdett, 
and he gave it; and after that Mr. Harriman gave his opinion. Then 
it was agreed that Mr. Bursley should sign so much of the deposition 
as had been taken, but that it was not to affect the rights of either 
party. 

Q. — Did you understand that Mr. Harriman agreed that this depo¬ 
sition should not be used providing the cross-examination could not 
be finished? A. — No, sir, I didn’t understand that. 

Q. —Didn’t you understand from what was said there that Mr. 


1882.] 


SENATE —No. 150. 


847 


Harriman would offer the deposition if the cross-examination could 
not be finished then? A. —No, sir, not from what he said. 

Q- — Didn’t you first say that you didn’t understand that Mr. Har¬ 
riman would not offer the deposition in case the cross-examination 
could not be finished? A. — I mean to say that I didn’t understand 
him to sa} r that it would be offered. 

Q. (By the Chairman.) — What was the reason given for signing 
it at all? A. —Mr. Harriman gave as a reason that the man might 
die if it wasn’t completed. 

Q. —If it wasn’t to be offered, what good would the signing do? 
A. —I don’t know, sir. The only point of agreement was, that the 
mere fact of its having been signed should not prejudice either party’s 
rights. I was in doubt myself as to whether it should be signed. 

Q. (By the Chairman.) —Didn’t you understand b}^ that,—the 
signing should not prejudice the rights of either party, —that either 
party should have the right to object to the others using the deposi¬ 
tion with the signature before the Committee? Was not that what 
you understood by “ not prejudicing the rights of either party” ? 
A. — Something of that kind. 

Q. —What else could it be? A. —I don’t know but there might 
be some other reason. 

Q. — What other reason could there be? A. —I don’t know. I 
was ignorant as to whether the deposition in that form should be 
signed at that time, or wait till it was completed. I suppose all 
present were anticipating that it would have been finished at that 
time. 

Q. —Wasn’t this the understanding: that it was satisfactory to 
counsel that it should go in signed in that form then, with the right 
of resuming the deposition? Wasn’t that the ground upon which it 
was signed then? A. —The only understanding of the matter was, 
that it should make no difference whether it was signed then, or after 
it was completed. 

Q. (By Mr.'WADLEiGH.) — Didn’t you understand that they were 
to have the right of cross-examination, provided it could be finished 
afterwards ? A. — Certainly. 

Q. — And that was what you understand ? A. — Certainly. The 
only question upon which there was a discussion there was whether he 
should sign at that part of the deposition he had already given, or 
wait and sign it after it was completed. 

Q. — And Mr. Harriman gave as a reason for this signing, that 
he might die before the cross-examination was finished? A. —Yes, 
sir. 

Q. _Now, if Mr. Harriman didn’t intend to use the deposition as 

it was in case the cross-examination could not be finished, what pos- 


348 


HEARING - JOSEPH M. DAY. [March, 


sible motive could he have had for desiring the deposition ? A. — I 
could not answer that. 

Q. (By the Chairman.) —I do not conceive of any motive for hav¬ 
ing the man sign that deposition except that he proposed to offer it 
if the man died. If the counsel for the remonstrants, or the witness, 
can give any other reason, I should like to have it. 

Mr. Thompson. I suppose if I had the same experience in this 
matter, I would have done the same thing ; and I should give this rea¬ 
son for it: I did it in order to place mj’self in the best possible 
position, although eventually it might not help any. I should suppose 
that the counsel would have done it. If I had been there in the posi¬ 
tion that he was, I should certainly have asked to have it done. 

The Chairman. For what reason? 

Mr. Thompson. Hoping to put myself thereby in the best possible 
position, in the expectation that it might be a benefit some time or 
other ; and I should do every thing to favor my client’s interest in the 
matter. I supposed that the signing in this instance neither added 
nor took from the deposition ; and the paper has no more validity 
than if the deponent signed in answer to the magistrate, saying that 
he didn’t know but that it might be required to be signed after the 
direct examination and after the cross. 

The Chairman. Still, though you knew it would do no good, 
would do it? 

Mr. Thompson. Certainly I should not do an entirely vain 
thing; but if I didn’t know that the man would live, or what might 
happen, I should take all the precautions I could in order to present 
afterwards my motion to the court or Committee in the best possible 
manner I could. 

The Chairman. Is not that the reason that the Chairman of the 
Committee stated, — that it was only in order, to offer it on? 

Mr. Thompson. I should offer it just the same if it was not 
signed : the signing would not change it at all, and Mr. Wadleigh 
would not offer it. It was not for the.purpose of offering it at all that 
it was brought up, but to place himself in the best possible position, — 
not to offer it, certainty. I should offer it in any way that was proper, 
and see what view would be taken of it; but I would not have had it 
signed in order to offer it: I am sure of that. 

The Chairman. You would offer it possibly, because you thought 
it would have a*better chance? 

Mr. Thompson. Possibly I might upon reflection, if I thought it 
might be of advantage. 

c? o 

The Chairman. I don’t know exactly how the Chairman ex¬ 
pressed himself, but that was what he intended to say. 


SENATE —No. 150. 


349 


1882.] 

i 

4 

Cross- Examination. 

Q. (By Mr. Burdett.) —You say that 3*011 stated at the time, 
that 3’ou felt 3*ourself ignorant of the proper method of proceeding, 
and asked the opinion of one or two of counsel, did 3*011? A. — Yes, 
sir : I think I said so. 

Q • —And when 3*011 asked the opinion of the junior counsel for the 
remonstrants, do you remember he said he supposed that there could 
not be any possible doubt of the fact, that the deposition was not a 
deposition until finished, and this one was not a deposition until the 
cross-examination had been finished, and the answers read over, etc. ? 
A. — M3* impression is, that Mr. Burdett said that it should npt be 
signed until it had been finished. That was my opinion : but I wasn’t 
firm in the belief, and for that reason I stated I was ignorant, 
and asked the opinion of the gentlemen present; and I understand 
the arrangement was, whether right or wrong, it should affect neither 
party. 

Q. — Now, in relation to the signing, Mr. Hopkins, I want you to 
tiy to remember whether or not I am correct when I ask 3*011 if, when 
there was a proposition on the part of Mr. Harriman to have what 
had been taken down signed, there wasn’t objection on the part of 
the remonstrants’ counsel at first? A .—There wasn’t objection 
until — 

The Chairman. I do not see exactly what 3*011 propose to show : 
I understand that the signature is just in the same position as evi¬ 
dence which was admitted under your protest or objection would be. 
I do not understand that you consented to have that paper signed, 
and then waive your right to object to it. I understand that it comes 
before us with the signature having been made under your objection, 
as if. evidence had been introduced under your objection, and you 
have the same right to avail yourself of the right of objection now 
as you would to evidence brought in under objection. 

Mr. Burdett. All I want to show by this witness is this: that, 
when the proposition was made that the witness sign what had been 
testified to up to that point, objection was made, and then, some 
discussion ensuing, I said substantially this: “ Why, Mr. Harriman, 
we will never make any dispute that the witness has testified to what 
has been put so far, without admitting that it constitutes a deposi¬ 
tion.” Whereupon he said, “ Let it be signed ; ” and the answer was, 
“ It makes no difference whether it is signed or not. We will never 
make a dispute of the fact of what this man has testified to up to 
this point.” —Well, let it be signed,” said Mr. Harriman ; and he 
went up to the witness himself, and it was signed by him for Mr. 
Bursle3*; and that was the whole of it. 


350 


HEARING — JOSEPH M. DAY. [March, 


Mr. Harriman. That is the whole of it. 

Q. (By Mr. Wadleigh.) —Is that correct, Mr. Witness? A. — 
Yes, sir, very nearly. 

Mr. Burdett. I said there would be no dispute of the mere fact 
that Mr. Bursle}' had answered certain questions, and had the answers 
put on paper. Mr. Harriman was anxious to have the witness put 
his name to it; and I objected at first, but said it makes no differ¬ 
ence — 

Mr. Wadleigh. And the ground of your objection was that you 
hadn’t finished the cross-examination? 

Mr. Burdett. It was that there was no deposition. 

Mr. Wadleigh. And it wasn’t a deposition because }*ou hadn’t 
finished? 

The Chairman. I understand the remonstrants claim, in the first 
place, that it should not be signed, and, whether signed or not, that 
it is not admissible. 

Q. (By Mr. Thayer.) —What was the physical condition of this 
Mr. Bursle}^? A. — I don’t know, but by hearsay. 

Q. —You saw him, didn’t }’ou? A. — He appeared much worse 
than I ever saw him look before. When I went into the room, he was 
coughing very badly; not anj r worse, however, than I have heard 
him cough in the court-house when about his business. After the 
deposition commenced, I noticed that he ceased almost entirety to 
cough; and I don’t remember hearing him cough more than once or 
twice. When the deposition was finished, I should judge that he was 
a great deal more fatigued, and apparently weaker, than when he 
commenced ; and, when Mr. Harriman asked him to sign it, I think 
he said, “ I can’t write,” or Mr. Harriman offered to sign it for him : 
and he was in bed during the whole time. 

Q. (By Mr. Bruce.) —Was he a very sick man at the time? A. 
— Mr. Bursley is such a peculiar man that I cannot say whether he 
was or wasn’t a very sick man. Sometimes, when under the physi¬ 
cian’s care, he has been known to get up out of his bed, and go about 
his business, and to cut a load of wood, and bring it home. 

Q. (By Mr. Wadleigh.) —He is a very strong-willed man, isn’t 
he? A. — Very strong, and of clear head. 

Q. — Did his physical condition appear to be weak? A. — Weaker 
than I ever noticed it before. 

Q. (By Mr. Thayer.) —He was exhausted to such an extent when 
that direct examination was finished, that he asked some one else to 
write his name : was that it? A. — I think he said, “ I can’t write ; ” 
and ray impression is that Mr. Harriman suggested that he would sign 
it, and — 

Q. (By Mr. Wadleigh.) -—Did he seem to be clear-headed that 


1882.] 


SENATE —No. 150. 


351 


day, Mr. Hopkins? A .— I think he was, sir. I saw nothing— 
except that he talked in a different manner from what I heard him 
talk before. His voice was apparently weaker. 

Q» — Did he object to the cross-examination? A. —I heard him 
say nothing about it, sir. 

Q' — But Mr. Harriman objected to going on with the cross-exami¬ 
nation at that time? A. — I heard no objection made. 

Q- — When did you give the certificate to brother Harriman? A. 
— I think it was yesterday morning. 

Q • —Prior to that time, had you talked with Judge Day about this 
matter? A. — I had not. 

Q . — Are you positive about it? A. —I don’t remember any con¬ 
versation with him. 

Q. — Didn’t you have any talk with him at all? A. —Do you 
mean before — 

Q. — No, no : an}' time between the time when this was taken and 
the time when you gave this to brother Harriman? A. — The fact 
of Mr. Bursley’s health might have been alluded to ; but I think — 

Q. — Didn’t you have a talk with him about this certificate? A. — 
I have no recollection, sir, of an}’. 

Q. —Can’t you say — can’t you recollect whether, between the 
time you took this deposition and the time you handed this certificate 
to brother Harriman, you didn’t talk with Judge Day about this cer¬ 
tificate or any thing else? A. — I have no recollection whatever of 
any conversation. 

Q. —Will you swear you didn’t? A. —I don’t say I would swear ; 
but I have no recollection. 

Q. (By Mr. Burdett.)—T he time that the direct examination 
closed, — did you state that in the certificate ? A. — I think I did, sir. 

Q. — How long was it before it would be necessary to leave the 
house to catch the train by taking a reasonable time to do so? A. — 
The train was due at Barnstable at four o’clock : I should think it 
would take ten minutes to get to the depot; and I should have to 
travel fast. 

Q . (By Mr. Cook.) — At whose motion was this adjournment had? 
Who suggested a continuance? A. — When Mr. Bursley’s deposition 
was finished, if I remember correctly, every person in the room — it 
being near four o’clock — arose as if by unanimous consent, without 
saying any thing about adjournment there. The matter was discussed 
in another room between the counsel; and then, after the discussion 
by them, — some part of which I heard, and some part of which I 
didn’t hear, — Mr. Talbot made a motion that it should be continued 
till Wednesday. 

Q. (By Mr. Wadleigh.) —Didn’t they say, previous to that, that 


352 


HEARING — JOSEPH M. DAY. 


[March, 


they would not proceed then with the cross-examination.? A. — The 
counsel? 

Q. — Yes. A. — I think I heard one of the counsel sa} T that it 
was impossible for him to come down on Monday. 

Q. — Didn’t the counsel sa} 7 that they couldn’t go on? A. — No, 
sir : I didn’t hear it. 

Q. (By the Chairman.) — I think } t ou stated previously that the 
cross-examination was postponed on motion of Mr. Talbot? A .— 
I so stated, and saj 7 so now. 

Mr. Wadleigh. It is not the fact. 

Mr. Thayer. So far as the evidence goes, it is. 

Witness. I want to make my answer clear. I understood I was 
asked whether there wasn’t an assertion that they would not come on 
Monda}\ I heard nothing of that kind. 

Q. (B3 7 Mr. Thayer.) —I ask you whether 3’ou understood from 
the counsel of Judge Day that they wouldn’t proceed with the cross- 
examination at that time, and whether that wasn’t before the dis¬ 
cussion that Mr. Bursle} 7 should then sign the deposition? A. — Do 
you mean on Saturday? 

Q. — No: before this discussion came up about allowing him to 
sign. Hadn’t the counsel for Judge Day stated that they would not 
then proceed with the cross-examination, and then didn’t the ques¬ 
tion come up, whether or not he should be allowed to sign what he 
had sworn to? 

Q . (By the Chairman.) — Whether, prior to this discussion in the 
other room, either of Judge Day’s counsel said that then the} 7 would 
not proceed with the cross-examination? A. — I heard no such state¬ 
ment as that. 


HIRAM P. HARR I MAN. Sworn. 

Direct Examination by Mr. Wadleigh. 

Q. — You may make a statement with reference to the matter now 
under discussion — as to what occurred. 

Mr. Thompson. I object to that certainly. If there is any matter 
that he is calling attention to, the special question should be put. 

Witness. After I announced that I had asked my last question, 
Mr. Burdett conferred a minute or two with Mr. Talbot and Jud°-e 
Day, and announced that they would not cross-examine that after¬ 
noon, that they wished to go to Boston on the train: and, when that 
was said, I insisted that the deposition be signed as far as given ; 
and I gave as the reason that Mr. Bursley and the deposition never 
be completed, and I wished to save my rights by having it signed at 
this stage. Then took place what Mr. Burdett has said. Mr. Hop- 


1882.] 


SENATE —No. 150. 


358 


kins* as lias been said, objected to its being signed. He didn’t think I 
had the right; but I insisted on my rights, took the pen and paper in 
my hand, and went to the bedside, and insisted on having it signed 
whether the counsel for the remonstrants were willing or not. Then 
Mr. Burdett and I agreed that it should not prejudice their rights: 
they should have the right to cross-examine, but 1 simply wanted to 
save m3’ rights at that time. Mr. Bursley wasn’t able to sit up, and 
sa3's, 44 Won’t } 7 ou sign it for me?” He asked me to do it, as it 
would be difficult to sit up in bed ; and I did it, and Mr. Burdett wit¬ 
nessed it. Then we went into the other room, and the time to which 
the examination was to be continued was discussed. But it was 
settled that there was to be no cross-examination that da3’ before I 
asked for an3 T signature, or an} 7 thing of the kind: the whole matter 
was talked over, and I stated that I would stay until midnight, if it 
was necessaiy, because I felt that Mr. Bursley was in a very danger¬ 
ous condition, and he was growing weaker and weaker day b3’ day; 
and I urged that if the} 7 continued at all, that it be to the earliest 
possible day. 

Q. (B} 7 the Chairman.) —Did you make that remark in the pres¬ 
ence of Mr. Hopkins? A. — Yes, sir. 

Q .—Before you went into the other room? A. —After, I think. 
I made the statement that I regarded him as in a very dangerous 
condition. 

Q. — Was the statement about staying till midnight made then? 
A. —I made that before the deposition was signed. 

Q. —Before you went to the other room? A. — Yes, sir. 

Cross-Examination. 

Q. (By Mr. Burdett.) —Wasn’t that statement about midnight 
made in some side talk between }’Ou and me in speaking of a con¬ 
tinuance? A. —You were speaking to me, and the magistrate sat 
between us. 

Q. — Wasn’t he at the head of the bed? A. — No, sir : between 
us. 

Q. — Isn’t it true that }’ou and I were addressing each other at the 
time that was said, and that you didn’t say in any formal way that 
you w r ould stay there till midnight? A. —I think I addressed the 

remarks to }’ou and Mr. Hopkins. 

Q. — Didn’t you say to various people on that day that } 7 ou were 
anxious to return to Boston by the four o’clock train, that } T our wife 
was here, and 3’ou wanted to get back? A. — \es, if the deposition 
could be completed. 

Q. — Did you say any thing in the presence of anybody when you 


854 


HEARING —JOSEPH M. DAY. [March, 


were speaking of your anxiety to return to Boston, by which you 
qualified it? A. — I think I said nothing till it was stated there was 
no cross-examination to be made that day. 

Q. — Didn’t you say in the morning, in the presence of Mr. Hop¬ 
kins and Judge Day’s son in the court-house, that you wanted to 
return on the four o’clock train? A. — Certainly I did if the busi¬ 
ness was completed earl}-. 

Q. — Now, did you make any formal effort to have the deposition 
continued Saturday afternoon ? A. — You announced that you were 
not ready to cross-examine. Of course I had no power to go on, and 
I accepted a continuance. Before that, I said I was ready to stay till 
midnight; but, when I found there was to be a continuance, I insisted 
upon its being signed. 

Q. — When this talk about not cross-examining that afternoon first 
came up, it was half-past three, wasn’t it? A. — It was just twenty 
minutes past three when I asked my last question. 

Q. — Wasn’t it half-past three before there was an} 7 talk of not 
going on that day? A. —I don’t think the talk was more than two 
or three minutes after I finished. At any rate, you announced that 
you didn’t care to go on that day, being obliged to return on the four 
o’clock train ; and you also said that you wanted time to prepare for 
cross-examination. 

Q. — Yes, that was said ; but I ask you now if it was not announced 
on our side that we didn’t care to begin the cross-examination, and 
wanted to return? I ask you, Did you make any objection to its 
being continued to some other day? A. —I don’t think I made any 
objection. I was ready to stay till midnight. 

Q. —Wasn’t that the only thing you said in relation to going for¬ 
ward that afternoon? A. —No, sir : I made this statement, — I was 
ready to stay till midnight; but, if there was a continuance, I wanted 
the deposition signed so far as it has gone. 

Q. —Did you make an} 7 motion to the magistrate, or in any way 
request him to proceed with the deposition, and let the cross-examina¬ 
tion go forward? A. —No, sir : no formal motion. 

Q. —After we announced that we could not go forward with the 
cross-examination, you didn’t make any suggestion? A .—No fur¬ 
ther than to state, as I have already said, that I was ready to stay 
until midnight. 

Q. — Didn’t you state that before this took place? A. —No, sir : 
it was stated after you said you couldn’t go on. 

Q. (By Mr. Thayer.)— On whose suggestion did the magistrate 
continue the examination? A .—Not on mine. He was the only 
man who was competent to do it. 


1882.] 


SENATE —No. 150. 


355 


Q .< — Now, is that correct, about going into the other room and 
disputing ? A. — No. 

Q. —Then, what he [Hopkins] states is not true about the dis¬ 
pute? A. — No, sir : before we went out. That took place first. 


GILBERT CROCKER. Sworn. 

Direct Examination by Mr. Harriman. 

Q. —Mr. Crocker, where do you live? A. —Cotuit. 

Q. — How old are 3 t ou ? A. — Fifty-seven. 

Q. — Do 3’ou know Judge Day? A. —I did know him. 

Q. — Do you remember the time when he was collector of the port 
of Barnstable? A. —Distinct^. 

Q. — Whether or not } T ou were master of a light-boat at that time ? 
A. — I was. 

Q. — Do 3 t ou remember of having aii3 T conversation with Judge 
Day at the time you drew 3'our first quarter’s salary? A. —I do. 

Q. —What was that conversation? 

The Chairman. In regard to 3 7 our appointment to that position. 

Mr. Harriman. In regard to payment I was asking him about 
now. That was after he was appointed. 

Witness. No, sir, it wasn’t. My appointment was — 

Q. (B3 t Mr. Harriman.) —You were appointed under the recom¬ 
mendation of whom? A. — Hon. Thomas D. Elliott. 

Q. — Did 3’ou have any conversation with Judge Da3 T about the first 
pa3’inent, at the time of drawing 3'our first salary ? 

Mr. Thompson objected. 

Q. (B3 t Mr. Harriman.) —Please state what took place between 
you and Judge Day at the time? A. — With all respect, gentlemen, 
I should prefer to answer the questions. 

Q. — What was said about any payment at the time your first sal¬ 
ary was due, between you and Judge Day? A. —I was given to 
understand — 

Q. (By the Chairman.) —By whom? A. — Mr. Day, who was 
then collector of customs. I was given to understand that it was 
customary for all holding like positions — positions like mine — to 
leave a sum of mone3 T . I did so. 

Q. — How much ? A. — Fifty dollars. 

Q. — Was that at the time the first quarter’s salary was due? A. 
— No, sir. 

Q .—What did you do then? A. — If I remember aright, I ex¬ 
pressed to Mr. Day something like this : that my position would not 
admit of it. I was poor, and had quite a family ; but, if I must do 


356 


HEARING —JOSEPH M. DAY. [March, 


so, I begged that lie would deduct it from the next quarter pay¬ 
ment. Then a note was filled out, which I signed ; and from the 
second quarter’s pa}ment the amount w r as deducted from what was 
due me. I don’t know what became of the note. 

Q. — To whom was this note payable ? A .—To Judge Day, I 
think : I am not positive. 

Q. —How much was it for? A. — Fifty dollars. 

Q. (By the Chairman.) — Whom did you give it to? A. — Mr. 
Day. 

Q. (By Mr. Wadleigh.) — When you told him you was poor and 
had a large family, did he make any reply? A. — He very kindly 
postponed the payment of it till the next quarter. 


Cross-Examination . 

Q. (By Mr. Thompson.) —You don’t undertake to give the con¬ 
versation between you and Judge Day at all, do 3*ou? A. — I have 
done so in part, I think. I think I said that he gave me to under¬ 
stand that it was customar}^ so to do. 

Q. — And didn’t he sa} T to you the payments were to meet ex¬ 
penses? A. — I don’t understand 3*011, sir. 

Q. — Didn’t he sa}* it was to meet certain expenses? A. — That 
he demanded payment of mone}"? 

Q. — Yes. A. — I haven’t any recollection of it. 

Q. — Did 3 7 ou ask him an}* thing in regard to what the money was 
for? A. — I didn’t, to 1113* memoi'3 7 . 

Q. — How long a conversation did 3*ou have in regard to the mat¬ 
ter? A. — Realty, sir, I cannot testify to that: it is twent3*-one 
3 T ears ago, I think, and I have forgotten it altogether. I had — 

Q. —You have forgotten it? A. — I had forgotten it, and I hoped 
it might never be brought up. I had forgotten and forgiven it. 

Q. —You sa3* 3*011 had forgotten all about the circumstance until 
3*ou was asked? A. —Oh, no ! not altogether: the feeling had died 
awa3^, of course. 

Q. — When were 3*ou asked about this matter ? A. — How recently, 
do 3*ou mean? 

Q. —Yes. A. —I received a subpoena to appear here. 

Q. —Was that the first 3*011 heard mentioned of it? A. — Oh, no ! 

Q. — That is what I ask you. A. — I could not give 3*ou the date, 
sir. 

Q. — Well as near as you can convenientty. A .—It was in 
1861 , I think : August, 1861 . 

Q . — You misunderstand me. How recently were you subpoenaed 
here? A. —Probably three weeks ago, as near as I can recall. 


1882.] 


SENATE —No. 150. 


357 


Q . — Who asked you with regard to that? A. — I don’t think any 
one asked me. I think I named it myself, concerning the conversa¬ 
tion about Judge Day. 

Q- — To whom ? A. — Charles C. Burse, my brother-in-law. 

Q . — How recently before that? A. — I don’t know. 

Q. — Haven’t you mentioned it before? A. — I don’t doubt I 
have many a time before, but I couldn’t give the date. 

Q. —Who was present at the time of the conversation? A. — No¬ 
body in the room but Mr. Burse and n^self. * 

Q. — Did 3’ou ever receive a dollar from Judge Day? Who was 
present when you had the conversation with Judge Day? A. — I 
don’t remember of seeing any other person. Mr. Chipman was in 
the custom-house then : he misdit have been there. 

o 

Q. —Yes, 3’es: did 30U ever receive a dollar of pay from Judge 
Da3 T in an3’ wa3 T ? A. —For services on the light-boat? 

Q. —Yes : from his hand? A. — I have. 

Q .—Refresh 3’our recollection, and sa3 T if you ever received one 
dollar from Judge Da3 7 ’s hands for an3 r service on that light-boat? 
A. —I think Mr. Chipman pays the men. I think so: I would not 
be positive. 

Q .—You won’t be positive? A. — I don’t think Mr. Da3’ paid 
it: I don’t think that he did. 

Q. —And it w’as paid to 3’ou at the *custom-house b3 r Mr. Chipman, 
you think? A. — By some one there, I think Chipman: I cannot 
speak decided^ on that point. 

Q. —You think it was paid by Mr. Chipman ? A. — I think so. 

Q. — Haven’t you any recollection about it? A .—I don’t re¬ 
member. 

Q. — So 3*011 can’t remember? A. —I think it was. 

Q. —You haven’t any recollection about that? that the money was 
paid to you in the custom-house? A. —I don’t know, sir. 

Q. —And 3’ou called there for your pay? A. — Yes, sir. 

Q. —And that was your quarterly payment? A. —Yes, sir. 

Q. — Now, 3’ou called upon Mr. Chipman, didn’t you, for your first 
quarter’s pay? A .—I called at the custom-house: I don’t remem¬ 
ber who paid it, Mr. Chipman, or some one else. 

Q. — Do you remember at all who you called upon when you called 
for your pay at the custom-house for the first quarter? A. —I do 
not. 

Q. —Will you say when 3’ou received your first quarter’s pay that 
Judge Day was in the room? A. — I would not swear to it: I don’t 
remember. 

Q — Will you say that when you received your second quarter’s 
pay that Judge Day was in the room? A. —Yes, sir. 


358 


HEARING — JOSEPH M. DAY. [March, 


Q. — You will say that? A. —Yes, sir. 

Q. — And who was there beside him ? Mr. Chipman ? A. — I think 
he was : I wouldn’t swear to it. 

Q. —And you were there, then, for the purpose of getting your 
pa}’? A. — Yes, sir. 

Q. — And you received your pay, didn’t you? A. — I did : always 
afterward in full. 

Q. —How much was your pay? A. — It was slight pay in October. 
It was six hundred dollars a year, I think: I remember — 

Q. — Do you know ? A. — Yes. 

Q. — It was six hundred dollars a year? A. — Yes. 

Q. — Now, sir, with regard to the fifty dollars : was that paid at 
the time you got your second payment? A. —Yes, sir. 

Q. —Wasn’t that paid to Mr. Chipman? A. — I don’t under¬ 
stand you. 

Q .—Wasn’t the payment that you made of fifty dollars, as you 
claim, made to Mr. Chipman? A. —I don’t know any thing about 
that, sir. 

Q. — You haven’t any recollection? A. —No, sir: I remember 
distinctly that fifty dollars was deducted from the amount due me. 

Q. (By the Chairman.)—O ut of the second payment? A. — 
Yes, sir. 

Q. —Did I understand you that was the only deduction made? 
A. —Yes, sir. 

Q. (By Mr. Burdett.)—A lways afterwards you received your 
pay in full? A. — Yes, sir. 

Q. (By Mr. Thompson.)—N ow, sir, didn’t Judge Day say to 
you that there was a great many political expenses that had to be 
met? A. —He might have said it: I don’t remember. 

Q. —And didn’t he say that it was fair and just for those that had 
position to help pay those expenses? A. —I don’t remember any 
thing about it. 

Q. — Haven’t any recollection whether he said that, or not? A. — 
I have not. 

Q. (By Mr. Thayer.) —Before you received this appointment, was 
you told you could be appointed if you would pay a certain sum out 
of your salary? A .— No, sir. 

Q. — Was any thing said to you intimating that it would influence 
the parties having the appointment if you would part with a portion 
of your salary after appointment? A. — No, sir. 

Q •—This was a matter, then, done after your appointment some 
three months? A. — Yes, sir. 

Q •—You were asked to contribute fifty dollars for some purpose? 
A. —Not exactly in that form of language. 


1882.] 


SENATE — No. 150. 


359 


Q. — You were given to understand that it was customary for all 
holders of like positions to leave so much money? A. — That is the 
language, as I remember it. 

Q. (By the Chairman.)— Was it stated who was to have that? 
A. —No, sir: I have no recollection that it was. 

Q. — I understand you to say you gave your note for fifty dollars 
to Judge Day to be taken out of your second quarter’s salary? A. 
— Yes, sir. 

Q. —That was so? A. —Yes, sir, that is correct. 

Q. —Did the note state on the face of it that was the way it was 
to be paid, or was there a verbal understanding as to that? A. — 
My recollection is that it was an ordinary note u for value received.” 

Q. —It was to be paid, then, out of the second quarter’s salary? 
A. — Yes, sir. 

Q. (By Mr. Thompson.)— You say you were appointed on the 
recommendation of the representative of that district in Congress, 
Thomas D. Elliott? A. — Yes, sir: a friend of mine, Mrs. Randall 
Kelley, a relative of Mr. Elliott, addressed him on the subject, and his 
reply to Mrs. Kelley was, I should get the second light-ship ; but, 
when I applied to Judge Da}', he said he had a friend who was anx¬ 
ious to get the position, but he would give me the “ Handkerchief” 
light-ship. 

Q. (By Mr. Wadleigh.) —Did you take the “Handkerchief”? 
A. —I took the “ Handkerchief.” 

Q. — Was Mr. Rodman one of your men? A. —Yes, sir, he was, 
afterwards. 

Q. — Did you know any thing of his paying any money, or being 
required to pay any? A. — I think I have an indistinct recollection, 
but I would not swear to any thing in regard to it. 

Q. (By the Chairman.) —Do you know how many officers there 
were appointed under the collector down there ? A. — I do not. 

Q .—Did I understand you — one of the Committee suggests the 
question — that this note was made payable to Judge Day ? A. — 
Yes, sir. 

Q. — And I understood you to say you never knew what became 
of it? A. — I am sure I don’t. 

Q. — It was never given to you ? A. — I don’t remember whether 
it was handed me and I destroyed it, or not. 

Q. (By Mr. Street.) —What was the “ value received ” ? 

Q. (By the Chairman.) —What was the value received on that 
note? A. — I should be puzzled to designate it, sir. 


360 


HEARING —JOSEPH M. DAY. [March, 


CHARLES Gr. RODMAN. Becalled. 

Q. (By Mr. Harriman.) —You had the position of mate under 
Gilbert Crocker? A. —I had, sir. 

Q. —And who recommended you for appointment to that position? 
A. —Judge Da}\ 

Q. — Had there been any conference between you with reference 
to that before? A. —Not that I recollect. Through Squire Steele I 
went over to Barnstable to present a petition to Judge Day; and I 
w r as to have a boat, to have command of it — 

Q. (By the Chairman.) —Who told }T>u so? A. —Judge Day 
— that I could ship my crew ; and a few days afterwards I received 
a note from Judge Da} r , and went to Barnstable, and went to see him. 
He said things had transpired whereby he could not let me have the 
boat; that Mr. Crocker had influence with Mr. Elliott, which was 
sufficient to get his appointment, and he should have to obe}'’ him ; but 
I could have a mate’s berth, if I wanted it. I accepted it. 

Q. — Whether or not, when your first quarter’s salary became due, 
any deduction was made from it? A. —I received for three months 
$30 per month, — $ 70 . 

Q. (B} t the Chairman.) —How much was 3’our pay? A. —Ninety 
dollars it should have been ; and, if I recollect aright, that came 
through the hands of Squire Steele. 

Q. (B} r Mr. Street.) —If there was any thing said as to wh} r that 
twenty dollars was kept back out of his salary ? 

Mr. Thompson. He said he got it from Squire Steele. 

Q. (By Mr. Street.) — I ask him if there was any reason ever 
given to him by any party that paid him his salary why that was kept 
back? A. — Nothing further than to say if it wasn’t right, Judge 
Day would make it right. 

Q. (By Mr. Burdett.) —Who said so? A. — Squire Steele. 

Q. (By Mr. Thayer.) — Who was Squire Steele? A. — Danforth 
S. Steele. 

Mr. Wadleigh. One of Judge Day’s witnesses. 

Mr. Thayer. He may be known by one or two other character¬ 
istics, perhaps. 

Mr. Cook. I understood the witness to say he was a friend of 
his. 

Mr. Thayer. I want to find out who Squire Steele is. We have 
heard that he is a friend of Judge Day, and got his first name. 

Witness. Danforth S. Steele of Norwich, justice of the peace. 

Q. (By Mr. Cook.)— I understand 3011 to sa} T you gave him an 
order to collect the mone}'? A. —Yes, sir. 

Q. (By the Chairman.) — Did he have any thing to do with 


1882.] 


SENATE — No. 150. 


361 


getting you the appointment? A. — He went with me in order to 
get the boat. 

Q • — Where ? A. — To Barnstable, in the first place ; and, after 
having a talk with Judge Day, they had a private conversation. He 
told me, returning home ; and he says, If }’ou want the boat — 

Mr. Thompson. I object. 

Q. (By Mr. Cook.) —Did he hold any office in the Custom House? 
A. — No, sir : not that I know of. 

Q. (By Mr. Thayer.) — As I understand 3'ou, there was no 
demand made upon } t ou by Judge Day, or an3 T body else, before you 
were appointed ; but the understanding was, that, if } r ou were ap¬ 
pointed, you would have to deduct a certain sum out of your salary? 
A. — Not as mate ; but, if I had the boat, I should have to pay fifty 
dollars. 

Q • — Who said that. A. — Squire Steele told me. 

Q. — I am asking 3*011 about Judge Day. A. —I had no further 
conversation with Judge Da3 r than what I have stated. 

Q. — I want to ask another question. There was put upon 3'ou 
this obligation, that, in case 3’ou received the appointment, — the 
commission on the light-ship,—3^011 should pay something for it; 
was that it? A. — I wasn’t to pay any thing as mate of the vessel. 
When I got n^ appointment as mate, there was nothing said about 
pay. 

Q. — After you received it, Squire Steele kept twent} 7 dollars from 
you? A. — He drew the money, and said Judge Day took it. 

Q. — He has told you since that Judge Day had it? A. — No, 
sir: at the time that Judge Da} 7 took it out. 

Q. (By the Chairman.) — Took it out of what? A. — Out of my 
quarter’s pay. 

Q. (By Mr. Thayer.) — Did he tell 3'ou what for? A. —For the 
position on the boat. 

Q. —Did 3’ou make am' objections? A. — I never saw Judge Day 
for a long time afterwards. 

Q. —There was twent}’ dollars kept out of 3 T our mone} 7 by Squire 
Steele. Who told 3 T ou Judge Day had it? A. —I received seventy 
dollars instead of ninety dollars, for the first quarter’s pay. I sup- 

9 

posed I had the document in my house ; but, looking after it, I failed 
to find it. 

Q. — Did 3'ou understand that the money went for political pur¬ 
poses? A. — No, sir. 

Q. —Nothing ever said to you by Squire Steele, or any one else, 
to show that that went to foot the bills? A. — Nothing further than 
I have stated : that they said that much was taken out of my pay ; 
and that is what I received. 


362 


HEARING —JOSEPH M. DAY. [March, 


Q. —Did he tell 3-ou an amount had been takbn out of others, that 
it was customary? A. — No, sir. 

Q .—You didn’t ask him? A. — I was aboard, and came ashore 
when it was my turn, and paid it. 

Q. — Did }’Ou ask him if others paid a certain per cent? A .— 
No, sir. 

Q. —You didn’t ask, then? A. — Capt. Crocker said he had paid 
fifty dollars. 

Q. — At the time yours was taken out did you know others w r ere 
going to pay? A .—No, sir: this was the first quarter, and I sup¬ 
posed I should receive ninety dollars. 

Q. (By Mr. Harriman.) —Did you want to paj r it? A. —No, 
sir : I think not. 

Q. —You were willing to pay it, though? A. — No, sir : I wasn’t 
willing; but I had no redress but to leave the boat, — as I did in 
September, 1862 , and went into the army. 

Q. (By the Chairman.) —You didn’t leave in consequence of 
that, did .you? A .—I was given to understand, if there was an* 
opening I might obtain it if I went aboard as mate. I didn’t obtain 
it, and I left. 

Q. (Bj r Mr. Bruce.) — I understand when you went up to Barn¬ 
stable to see Judge Day, that Squire Steele went with you ? A .— 
Yes, sir. 

Q. — And he was the man you relied on to procure the situation? 
A. — Yes, sir. 

Q. —And that he and Judge Day had a private consultation? A. 
— Yes, sir. 

Q. —And was it immediately after coming from that consultation 
that Squire Steele told you if you were appointed captain you would 
have to pay fifty dollars? A. —Yes, sir: on the way home he said 
if I paid fifty dollars to Judge Day 1 could get the boat, and I told 
him I would do so to obtain the boat. 

Q. (By Mr. Thompson.)—D idn’t you press your claims on ac¬ 
count of political work? A. —No, sir : I signed a petition for INIr. 

Swift instead of Judge Daj T . 

_ • 

Q •—That doesn’t answer the question. You supposed that was 

in response to the question I asked you, didn’t you? A. —I had no 
claims — 

Q • — No, no! You supposed that was in answer to the question 
which I put to you, didn’t you ? A. — No, sir : not directly. 

Q • — Now I ask you the question, If 3-011 didn’t present your 
claims on account of your political considerations? A. —I presented 
a petition — 

Q • — Didn’t you claim that you were entitled to it as an active 
Republican? A. — I think not. 


1882.] 


SENATE —No. 150. 


868 


Q'— Didn’t make an}'claim of that kind? A .—I don’t think I 
ever made any claim on the score of political views in my life. 

Q •—Then you went for it wholly on the ground of your special 
fitness for the office ? A. — I went for the office — 

Q • — On the ground of special fitness, didn’t you? A. —Yes, I 
could do the work. 

Q. — So yours wasn’t a political appointment at all? A. —No, 
sir: I don’t consider that it was so. 

Q .—Have you your commission, so as to tell when‘you were 
appointed? A. —I think I have, but not with me. 

Q. —Do you remember the date of your appointment? A. —No, 
sir : not at this moment. I think I went aboard on the June quarter. 

Q. (By the Chairman.) — What year? A. — 1861 . 

Q. — When was Judge Day appointed? A. — In 1861 , first part 
of the administration. 

Q. (By Mr. Thompson.) —You stated you didn’t pay at the first 
quarter? A. — I received seventy dollars then. 


HENRY B. HOPKINS. Sworn. 

Direct Examination by Mr. Harriman. 

Q. — Where do you live, Mr. Hopkins? A. —Chelsea. 

Q. — What is your business ? A. — Travelling salesman. 

Q. — For whom? A. — Gould, Spaulding, & Co. 

Q. — What business? A. — Hats and caps. 

Q. — Whether you know Joseph M. Day? A. — I know him by 
sight. 

Q. — Whether you have seen him at any time on the cars down on 
the Cape division ? A. — Yes, sir : several times. 

Q .— Whether you ever saw him under any circumstances that 
attracted your attention ? A . — I did at one time. 

Q. — And when was that time? A. — When was it? 

Q. — Yes? A. — Some three or four years ago; I don’t recollect 

exactlv. 

%/ 

Q. — Whereabouts was it you saw him? A. — Somewhere near 
Yarmouth ; that is, below Wareham. I got on at Wareham. 

Q. — What time in the year was it, you think? A . — Early fall, I 
think. 

Q . — And whereabouts was it you saw him on the cars ? A. — I 
don’t understand the question. 

Q. — Was it inside or outside the cars? A. — In the car. 

Q. —Did you see him go anywhere, out from the car? A. —Once 
or twice. 


864 


HEARING —JOSEPH M. DAY. [March, 


Q. — And what was his condition ? A. — He was intoxicated at 
that time to all appearances. 

Cross-Examination. 

Q. (By Mr. Thompson.) —Is the Cape one of your routes? A. — 
Yes, sir. 

Q. —How long have you been down there? A. — Some eight or 
nine years. 

Q. — Well, what time in the day was it? A. — It was in the even¬ 
ing, sir, on the evening train: I should judge six or seven o’clock. 

Q. —How man} r cars did they have on the train? A. —I don’t 
know, sir. 

Q. — Haven’t you any recollection? A. — No, sir. 

Q. — In which car were you? I was in the regular passenger-car. 

Q. —You don’t know whether it was the rear or front car? A. — 
I think the rear car, sir. 

Q. —Where did you start from? A. —From Wareham. 

Q. —And you got in there after dark? A. — It was early fall. 

Q .—I ask you whether you got in there after dark? A. — The 
cars were lighted. 

Q. — And you took your seat: do you remember in what part? 
A. —Towards the rear of the car. 

Q. — And where were you going? A. — I don’t remember ; either 
Wellfleet or Provincetown. 

Q. — You were on the main road to Cape Cod? A. — Yes, sir, if 
I remember right. 

Q. — Well, now, sir, how far had you got along before you saw 
Judge Day ? A. — I could not say just how far. 

Q. —Have you any recollection about it? A. —Yes, sir. 

Q. — How far? A. — I should judge it was about some time after 
leaving Barnstable, but I couldn’t swear to it. 

Q. — How long after leaving Barnstable? Do you know what 
time the cars leave Barnstable? A. —No, sir, I do not. The cars 
leave Wareham about six. 

Q. —Then, they left Barnstable about seven o’clock, somewhere 
along there? A. —Yes, sir : I should judge so. 

Q. — How far had you got beyond Barnstable? A. —I couldn’t 
say. 

Q. —As near as you can remember. I don’t suppose you can say 
within a rod. A. —I don’t remember about the distance. 

Q. —Well, how far had you got on the Cape? A. — I don’t think 
we had got to Yarmouth. 

Q. — Do you know whether you had, or not? A. — I cannot swear 
to it. 


1882.] 


SENATE —No. 150. 


365 


Q. — Do }'ou know any thing about where Judge Day got in. A. 

— No, sir. 

Q. — Do you know any thing about where he got out? A. —No, 
sir. 

Q. — Well, now, sir, how far had you got along the last time you 
saw him? A .—I don’t remember: I saw him somewhere between 
Wareham at the time I got in, and Yarmouth ; I couldn’t say certain. 

Q .—But 3’ou didn’t see him at all after } t ou got beyond Barn¬ 
stable? A. —That is my impression. 

Q. —Yes, sir : it is your impression now? A. — Yes, sir. 

Q. —You thought 3’ou saw him when 30U got as far as Yarmouth, 
but 3’ou were not certain about that? A. — No, sir, I am not. 

Q. —Now, sir, how far had you got along the last time 3 r ou saw 
him? A .—As I said before, it was someAvhere between Wareham 
and Yarmouth. 

Q. — That was the last time? A. — Yes, sir. 

Q. —Now, sir, did you have any conversation with him? A .— 
No, sir. 

Q. — Did he pass out of the car 3’ou were in? A. — He did. 

Q. —Which wa3 r did he go? A. —He came by me : I was sitting 
back of him. 

Q. — You were sitting in the rear of the car, and he passed out? 
A. —Yes, sir. 

Q. — When the car was in motion? A. —Yes, sir. 

Q. — He walked out: didn’t stop to speak with 3’ou? A. —Yes, 
sir. 

Q. —When did you see him after that? A. — He came in again. 

Q. — How long was it after he went out of the car? A. —A few 
moments. 

Q. — Well, how long? State to the best of your recollection. A. 

— Not over five minutes. 

Q. — Where did he go then ? A. — Back to the seat he occupied. 

Q. —The same seat? A. — Yes, sir. 

Q. —Anybod3 r occupy the seat with him? A. —No, sir. 

Q. — How many people were there in the car? A. —There might 
have been eight or ten. 

Q .—I didn’t ask you how many there might have been. I ask 
your best judgment as to how many there were in the car? A. — I 
couldn’t say for certain. 

Q. — Have you any recollection of it? A .—I remember there 
were a few people in the car. 

Q. —Did 3 r ou know anybody that was there? A. — No, sir. 

Q. _Can’t you remember a man? You remember now that was 

your route: you can remember a few there. Can’t you give us the 


866 


HEARING—JOSEPH M. DAY. [March, 


name of a single person you saw there? A. —I don’t remember 
distinctly, but I think Mr. Messer was conductor of the train. He 
was the only party I knew. 

Q. —You knew him? A. —Yes, sir. 

Q. — Did you know any of the passengers? A. —No, sir: I 
don’t remember of knowing any of them. 

Q. — Did you keep your seat all the time? A. —Yes, sir. 

Q. — Where did Judge Day go after that? A. — I don’t remem¬ 
ber. 

Q. —Don’t remember ! Didn’t you see him after that? A. — In 
the next seat I saw him. 

Q .—How man}" seats were you from him? A. — Sitting on the 
opposite side, some four or five seats back. 

Q .—And he passed out, and was gone some five minutes, and 
walked back, and took the same seat where he had been sitting? A. 
— If I remember right, yes, sir. 

Q. — And, so far as you know, he did get up again? A. —Not 
that I remember. 

Q .—Can’t you tell how far you went that night? A .—I could 
not, sir. 

Q. — Where did you stop? have you any recollection? A .— 
Either Wellfleet or Provincetown : that was my general place. 

Q. — Did you say Judge Day got out at Wellfleet? A. —No, sir. 

Q. — Or Provincetown ? A. — I don’t think I did ; no, sir. 

Q. — Have you any recollection about it after he took his seat? 
A. —No, sir. 

Q. —No recollection what took place? A. — No, sir. 

Q .—Was he in conversation with anybody? A. — I didn’t see 
him speak to any one. 

Q. — Didn’t hear him speak to any one either? A. — No, sir. 

Q. — And you never heard him say a word from the time you got 
into the car until the time you lost all recollection of him? A. — I 
didn’t hear any thing at all. 

Q. —What did you see about Judge Day that led you to suppose 
that he was intoxicated? A. — From his appearance. 

Q. —What did you see that led you to think that he was intoxi¬ 
cated ? A. — From his appearance, as I said before. 

Q. — I ask you what you saw, sir. You will please state that 
A. — Well, he was different from what I have seen him before. 

Q. — I ask you what you saw, sir. 

Q. (By the Chairman.) — What did he do, Mr. Witness? A. — I 
saw that he was very restless. 

Q • (By Mr. Thompson.)—W as it hot or cold weather? A .— 
Mild weather. 


1882.] 


SENATE —No. 150. 


367 


Q • — Do you call a child drunk when it is restless? A. — No, sir. 

Q. — What else did 3*ou see except restlessness? won’t you answer, 
please ? A. — I judged he — 

Q- — No, no : I ask you what you saw. You saw he was restless. 
You noticed that. Now, what else did you see? 

Q. (By the Chairman.) — Will you not state? 

Q. (By Mr. Thompson.)— Won’t you answer? Is the reason 
because you cannot answer it? I ask you if that is the reason why 
you don’t answer? Is the reason because 3*011 cannot answer? 

Mr. Wadleigh. It’s because you holler so ! 

Mr. Thompson. Now, if brother Wadleigh is delighted with that 
remark, it is pleasing to me. I always like to see a man enjoy him¬ 
self ; but if you are laughing to prevent my cross-examining this wit¬ 
ness, it is of no effect. [To Witness.] I ask you what else you 
saw except that he was restless? A. — I couldn’t state it, sir.. 

Q. — Do you know Mr. Messer? A. —Yes, sir. 

Q —Did you ask him any thing about this matter? A. —No, sir. 

Q. — Or Mr. Harriman ? A. — No, sir. 

Q .—You know Mr. Harriman well? A. — No, sir. 

Q. (By Mr. Kingsbury.) — Had you ever seen Judge Day before? 
A. —Yes, sir. 

Q. — How many times? A. —Two or three times. 

Q. —You knew him well by sight? A. —Yes, sir. 

Q. — No mistake about his being the man? A. —No, sir. 

Q .—Was there any difference in his walk that 3*011 noticed? 
A. —Yes, sir: he didn’t seem to walk so steady. 

Q. —You didn’t see him walk off the cars? A, —No, sir: it was 
on the cars. 

Q. (By Mr. Bruce.) —Was there any other sign about the man 
that you have not specified particularly, that led 3*011 to think he was 
intoxicated? A. — His face was florid: he had every appearance 
of a man that had been drinking. 

Q. (B3’ the Chairman.) —Did he talk at all? A. —I didn’t hear 
him, sir. 

Q. (By Mr. Thompson.) —Don’t you know he is lame? A. — I 
didn’t know that, sir. 

Q. — Do 3*011 remember whether, or not, he had a cane ? A. —• 
Yes, sir, he did have a cane. 

Q. — But didn’t he w*alk lame? A. —I didn’t notice that. 

Q . — Sir? A. —I knew that he had a cane with him. 

Q .—And he walked by the seats with the cars in motion. Did 
3 r ou ever see a man with the cars in motion that walked stead3*? 
Don’t it shake a man about? A. —Yes, sir. 

Q. — And isn’t it very difficult for a man to keep on his feet when 
the cars are in motion? A. —Yes, sir. 


368 


HEARING —JOSEPH M. DAY. [March, 


Q .—You say because he didn’t walk steady you thought that he 
was intoxicated ? A .— No, sir. 

The Chairman. I submit that the witness must be fairly dealt 
with. He was asked how he walked, and he said he did not walk 
steadily. 

Q. (By the Chairman.) —Did he walk any differently from other 
people who walk through the cars? A. — I thought that he did. 

Q. (By Mr. Thompson.) —Don’t you know that he alwa} T s walks 
differently from other people? A. —I noticed that. It never 
occurred to me that he was lame. 

Q. (By Mr. Bruce.)— Did he walk differently on this da}^ on 
which 3 t ou say he was intoxicated, from what Judge Day usually 
walks ? A. — Yes, sir. 

Q. (By Mr. Thompson.)— In what particular did he walk differ¬ 
ently from what }^ou had seen him on other days on the cars, when 
they were in motion? A. —He didn’t walk erect, as he generally 
does. 

Q. —Do 3-011 remember of an3 T time when 3 T ou ever saw him walk 
on the cars before? If 3’ou did, won’t y T ou state the occasion? A. — 
I couldn’t state the occasion. 

Q. —Will 3 T ou say now that 3 r ou have in your mind a distinct recol¬ 
lection of ever having seen him walk on any other occasion in the 
cars? A. —Yes, sir. 

Q. —How long before this? A. — I don’t remember. 

Q. — Do 3 T ou remember of more than one occasion? A. —Yes, 
sir. 

Q. — How many? A. — I couldn’t state: I have seen him quite 
often when down that way. 

Q. — I am asking about 3 r our seeing him walk through the cars 
while the3 r were in motion? A. — I don’t think I have, sir, in that 
way. 

Q. (B3' the Chairman.) — Did you ever see him walk through the 
cars before, while the3 T were in motion? A. — I could not swear 
that I did. 

Adjourned till Thursday, March 1 G, at 10.15 a.m. 


1882.] 


SENATE — No. 150 


369 


TENTH HEARING. 


State House, Boston, March 16, 1882. 

The Committee met at half-past ten o’clock, Senator Bruce 
presiding in the absence of Senator Jennings. The Chairman 
announced the hearing opened, and asked the attorne3 T s for the 
remonstrants whether, or not, the decision in regard to the admission 
of the deposition of David Bursley by the Committee would affect 
the hearing that was to take place this morning. 

Mr. Thompson. I should say that it would, if it is ruled out; and 
if it is put in, that would certainly have a very material effect. 

[The Committee then retires for consultation ; and , upon returning , 
the Chairman announces that the decision of the Committee is that the 
deposition shall be received.] 

[Mr. Harriman proceeds to read the deposition of David Bursley.'] 

[The objections made by the counsel for the remonstrants to cer¬ 
tain interrogatories were overruled, and the deposition was admitted 
in evidence.] 


DEPOSITION OF DAYID BURSLEY. 

COMMONWEALTH OF MASSACHUSETTS. 

Barnstable, ss. (seal.) 

To S. B. Phinney and others, remonstrants to the Legislature of said Common¬ 
wealth, against the removal of Judge Joseph M. Day, by address, and 
Charles P. Thompson, Thomas H. Talbot, and E. W. Burdett, their 
counsel, and to said Joseph M. Day, Greeting: 

Whereas Laban Baker 2d and others, petitioners for the removal of said 
Judge Day by the said Legislature, have requested me to take the deposition of 
David Bursley of Barnstable, in the county of Barnstable, before Smith K. 
Hopkins, Esquire, a justice of the peace within and for said county of Barn¬ 
stable, at the dwelling-house of said David Bursley, in said Barnstable, to be 
used before the said Legislature and its Committee to which said petitioners 
and remonstrances have been or may be referred, upon the question whether 
said Day should be moved by address from the office of judge of probate of said 
county: and the dwelling-house of said Bursley, and the fourth day of March, 
in the year of our Lord one thousand eight hundred and eighty-two, at nine of 
the clock in the forenoon, are appointed the time and place for the said depo¬ 
nent to testify what he knows relating to said matter. 

You are hereby notified that you may then and there be present, and put 
such interrogatories as you may think fit. 


370 


HEARING —JOSEPH M. DAY. [March, 


Given under my hand and seal at said Barnstable on the twenty-fifth day of 
February, in the year of our Lord one thousand eight hundred and eighty-two. 

EDWIN A. WADLEIGH, 

Justice of the Peace throughout the Commonwealth. 


Suffolk, ss., Boston, Feb. 25, 1882. 

I this day gave an attested copy of this notice to the within named Thomas 
H. Talbot, Esquire, for his appearance as within directed. 

J. B. INGALLS, Deputy Sheriff. 

Ser. and Tr. 

$ 2 . 20 . 

Barnstable, ss., Feb. 27, A.D. 1882. 

I have this day served the within notice on the within named Joseph M. Day, 
by giving him in hand a true and attested copy of same. 

EBEN B. CROCKED, Deputy Sheriff. 

Fees: Copy . . . $0.50 

Service . . .50 

Returning Process 1.60 

Total . . . $2.60 

Q. 1. —What is your name, age, and residence? 

A. — David Bursley, seventy-eight years, residence Barnstable. 

Q. 2. — What positions have you held in this county? 

A. —Sheriff, deputy-sheriff. I was appointed by the United States to take 
the census in 1850 and 1860. I took Barnstable, Yarmouth, and Sandwich in 
1850; Barnstable and Yarmouth in 1860. I was deputy United States marshal 
for a few years. It was a short time. 

Q. 3. — What is your present state of health? 

A. —My health is very bad. I never expect to go out door again. 

Q. 4 . —Whether, or not, you are acquainted with Judge Joseph M. Day? 

A. —I am. 

Q. 5. — How long have you been acquainted with him ? 

A. —For thirty years and upwards. 

Q. 6. — Whether, or not, you have ever had any conversation with Judge Day 
about his being appointed collector of customs for the district of Barnstable ? 

[Question objected to by counsel for remonstrants, on the ground that it 
relates to charge nine of the petitioners’ specifications, and that it has no refer¬ 
ence to Judge Day’s conduct as judge of probate and insolvency; and that it is 
a matter relating to an office under the United States, and is irrelevant, incom¬ 
petent, and impertinent; and no reason is shown why it was not inquired of, 
if competent, in the proceedings of 1881 against Judge Day.] 

A. — I have repeatedly. 

Q. 7. —When was it that you had the first conversation with Judge Day in 
reference to the office of collector? 

[Counsel for remonstrants here desire the magistrate to note that they object 
to all the inquiries and answers which may be made touching the subject-matter 
now inquired of; that is, touching the subject-matter of charge nine.] 

A. —It was during the last part of ’60, and first part of ’61, during our 
rides together and business together; and it was followed up until he got the 
appointment. The most of the conversation was in that sitting-room; he and I 
alone; not a soul present, as I know of. I know of none. The conversation 
between Mr. Day and I in that matter was to be strictly confidential, till we 
got the arrangement all made. 



1882.] 


SENATE —No. 150. 


871 


Q. 8. — State the whole of what was said between you, in relation to his 
being appointed to said office of collector. 

A. —We used to talk about it on our rides on the Cape, and in this sitting- 
room. Mr. Day said that when Mr. Phinney’s term was out, he would like to 
be collector. I said there wouldn’t be much prospect of his getting it; he was 
judge of probate and insolvency. I told him I couldn’t have the face to go 
over all this county, and get them to sign a petition for him under the present 
circumstances. I told him I supposed Mr. Charles Swift was going to be a can¬ 
didate. I told Mr. Day, says I, “ Mr. Swift and I are good friends, and if Mr. 
Swift is a candidate, I can’t have any thing to do with it.” I saw Mr. Swift, 
and told Mr. Day that I had seen him (Swift) on the street, and asked him, and 
he didn’t say much, and turned the cold shoulder on me; and I told Mr. Day I 
shouldn’t trouble myself about Swift any more; and I told Mr. Day, that as 
friendly as I was with Mr. Munroe’s folks and Mr. Swift’s, that I didn’t wish to 
have any thing to do with; but if he would find out whether Mr. Swift was 
going in for the office, — ascertain if he wasn’t,—I w'ould take hold and do 
all I could for him. 

Mr. Day came in, an evening or two afterwards; said he had seen Mr. Swift, 
and he couldn’t get nothing out of him. He came in about every night, Mr. Day 
did, and he didn’t find out whether he was going in for it or not, until Satur¬ 
day. Mr. Day came in Saturday morning, and said he was going to Portland 
Monday; and I told him he had better go down and see Swift, and have the 
matter settled. He came back, said he had been down and seen Mr. Swift; that 
Mr. Swift didn’t seem to want to talk about the matter at all; that when he got 
ready to go in for it, he would let me know. That evening Mr. Day and myself 
fixed up the petitions. After he went off, and I didn’t see him for a week. I 
started off Monday morning at four o’clock, and left the petitions with my 
friends along the road, for them to sign and have ready when I came back. I 
collected about all of them on my way home, except Falmouth and Sandwich; 
them I received after I got home, by mail; and Mashpee. I also got Chatham 
by mail. I got back Tuesday. 

Q. 9. — Whether, or not, any thing was said to you by Judge Day about 
resigning the office of “judge” if he was appointed collector. 

[Question objected to on the additional ground that it is leading as to form,] 

A. —Yes, sir, there was; two or three times. 

Q. 10. — State what he said to you. 

[Question objected to on the ground, that, even if the general subject-matter 
under inquiry is admissible, what was said by Judge Day to this witness about 
resigning the office of judge if he was appointed collector, is entirely imma¬ 
terial and incompetent.] 

A. — He said, that if that was any obstacle in the way of anybody’s signing 
for him for collector, to tell them that he should resign the judge of probate 
and insolvency. 

Q . H.— Whether you did any thing with the petitions after you collected 
them ? and, if so, what ? 

A. — I took them all after I had collected them all in, and went to New 
Bedford with them, to Mr. Thomas D. Elliott, our Congressman. 

Q. 12.—Did Judge Day do any thing about securing the appointment? and, 
if so, what? 

A. —I don’t know any thing; only he told me he went on to Washington. 
I don’t know of a thing Judge Day did around here. There was one thing. 
He told me to keep the run of all my expenses, — all the money I paid out, — 
and he would pay all my expenses that I was at, and appoint me inspector. 


372 


HEARING —JOSEPH M. DAY. [March, 


Q. 13. — Did he do so ? 

A. —No, he did not. He appointed me inspector, and when I told him, 
“Now, Mr. Day, pay my expenses.”' Says he, “Oh, tush! let that go towards 
your office, like the rest of them.” My expenses were about seventy-four 
dollars, which I never received. 

Q. 14. — What, if any thing else, did Judge Day say to you about the matter 
of the “rest of them”? 

A. — He went over then in regard to the officers he was going to appoint, — 
deputy collectors, inspectors, etc. He named most of the offices that he had 
control of in the district. He wanted to know how he was to get his pay for 
his expenses he had been to. I told him it was usual and customary in such 
cases for the subordinate officers to pay the collector the expenses he had been 
to; that the collector generally assessed around among them. He told me he 
had been to a great deal of expense. I doubted the expenses some. I did not 
doubt the man’s word. I told him the expenses were large. He said his 
expenses had been one thousand dollars, more or less. I don’t know as he said 
exactly a thousand, but he put it up pretty large, I thought. 

He sat down in the room here with me, and wrote off the men’s names, after 
I told him the men I had employed in his behalf throughout the county, in 
to help get the office. I had a list of them. We sat down here together, 
and made a list of the officers he was going to appoint. I told Mr. Day, before 
I made out the list, they would expect an office, or be paid for their services. 
We made a list of the officers, and what offices they were to have, and he 
appointed all that I recommended to him at that time. Then he wanted to 
figure out how much each one should be taxed to pay his expenses. That list 
of officers that he agreed to appoint, he assessed them from a hundred dollars 
down to fifty, — most of them. I told him I didn’t think they would pay 
it, and that I didn’t think it was right nor just. He said it wouldn’t more than 
cover his expenses. He made a list, and made a second. He took one, and I 
took the other. I took a copy of the one he had. I have had it in my posses¬ 
sion ever since, — of the men, and what was taxed them. 

Q. 15. —Where is that copy that you say you have ? 

A. — I can’t tell you. It went out of my hands. I can’t tell where it went, 
— to Mr. King, or Mr. Harriman, or somebody. Somebody came here, and 
wanted that copy. 

Q. 16. —Look at the paper handed you, and state what it is. 

A. — That is the copy that I made from the paper Judge Day made, and has 
been kept secretly with my private papers; never has been out of my house until 
lately, where I keep all my private papers, except I took it to Boston this win¬ 
ter, when I went to Boston this winter, expecting to spend the winter. But I 
was taken sick, and when I came home that night, I took it out of my trunk, 
and put it with my private papers again. 

Q. 17. — Will you please allow the magistrate to annex it to your deposition ? 

A. — Yes. [Paper annexed marked “A.”] 

Q. 18.—Do you know of your own knowledge whether the amounts men¬ 
tioned in said paper were paid to Judge Day ? 

A. —I do not know one of them, except what I was told. I do not know of 
one of them that ever paid it personally. 

Q. 19. — Did Judge Day say any thing to you at any time about resigning the 
office of collector? and, if so, what, and when? 

A. —Yes, sir: he came to me two or three times, nearly a week, back and 
forth, before he did resign, and talked the matter over, and gave me the rea¬ 
sons whv he thought he should do it. 


1882.] 


SENATE —No. 150. 


373 


Q. 20. —Please state what lie said. 

A. —He said he couldn’t stand it, no how so. Mr. Munroe’s folks and Mr. 
Swift’s folks wouldn’t speak to him, and cut him, and that he did not want to 
live in that kind of way with his neighbors. He said if he could make a good 
trade with Mr. Swift, and asked me what I thought about it. I objected to it 
altogether on account of the men he had appointed to offices, who had paid so 
much for their offices, and Mr. Swift’s turning them out and putting in new 
men. He said he would see Mr. Swift, and make that all right. 

He came back, and said he had seen Mr. Swift. I want you to understand 
that this wasn’t all in one day. It was a week’s work. I won’t say a week, 
but I will say from one to three days. He counted up the expense, that is, 
the emoluments of the office, — about what it would amount to. He figured 
up the emoluments of the collectorsliip during the term, and he made it out 
that half of it would be about two thousand dollars. He figured it up, that by 
the trade with Mr. Swift he should get about two thousand dollars out of it; 
but the question was with him, was how he was going to secure himself with 
Mr. Swift for that amount, as he had no available property, and he might use 
the salary up as fast as he collected it. He said to me, “ IIow would it do for 
me to take Mr. Swift’s notes, payable in six, twelve, eighteen, and twenty-four 
months?” I told him that they would be good if he could get Deacon Munroe 
to indorse them. That’s about all the conversation we had at that time. He 
went away, and came back again that day or the day after, it was very soon, and 
told me he had fixed the business up with Mr. Swift. They had divided the 
office,—the emoluments of it, — and Mr. Swift to keep all the old officers in 
during the term, and not turn them out, unless they didn’t do their duty in the 
office. If they did their duty, he should keep them there; and he did so, so far 
as I know. That is, he kept tfie old officers in. 

Q. 21. —Did he say any thing more? 

A. — A day or two afterwards, after he had got the matter fixed, he came to 
me and said, “Now, Bursley, Deacon Munroe won’t indorse the notes, and he 
repudiates the whole thing.” He afterwards came to me, and said he had got 
the notes signed by the Mr. Knowles I think; signed or indorsed, I won’t say 
which. That ended that matter as far as I know any thing about it. 

Q. 22. —Whether, or not, you saw Judge Day at Falmouth at Davis’s Hotel 
in the year 1879? 

A. —I can’t swear that I saw him in the hotel. I was there in 1879 in 
June. I saw Mr. Day coming, and we sat on the west piazza conversing, — Mr. 
Davis and I. It was a very warm day. I was there attending the Congrega¬ 
tional Association of the county of Barnstable. I saw Judge Day coming with 
his hat off and his coat and vest open. 

Q. 23. — What was his condition at that time? 

[Objected to by counsel for remonstrants on the ground that it calls for an 
opinion or a conclusion rather than for the facts themselves, and on the ground 
that the witness in this particular can only testify to the things which he saw 
and heard, and not to any inference which he may have drawn therefrom.] 

A. — His condition was that of a man who had been drinking, because he 
didn’t walk straight, and was swinging his hat, and he was flush in the face. 
He was very warm. He seemed to be a good deal agitated. As he came along 
niglier and nigher towards the hotel, he got nearly up to the hotel, he swung 
his.hat and sung out to the hotel-keeper, “ Elihu,” says he, “give me a room 
where I can get rid of these d—d hounds asking me so many questions about 
the probate court! ” Mr. Davis went down and went out of sight with Mr. Day, 
and I never saw him till I saw him at Barnstable. 


374 


HEARING —JOSEPH M. DAY. [March, 


Q. 24. —Whether, or not, Judge Day was intoxicated at that time. 

[Objected to by counsel for remonstrants for reasons stated in the last objec¬ 
tion.] 

A. — I say he was. 

DAVID BURSLEY, 

By H. P. HARRUMAN. 

Witness, E. W. Burdett. 


“A.” 1801 “A.” 

Oct. 1, 1861, District of Barnstable. 

JOSEPH M. DAY, Collector of Customs. 

AMOUNT COLLECTED OF THE FOLLOWING OFFICERS APPOINTED AND REC¬ 
OMMENDED FOR APPOINTMENTS IN SAID DISTRICT. 


Walter Chipman, Deputy-Collector, Barnstable . ... . . $100.00 

David Bursley, Inspector at do .74.00 

Sylvester Baxter, “ at Hyannis.50.00 

Joseph K. Baker, Deputy-Collector, Dennis ..75.00 

Valentine Doane, jun., Harwich.50.00 

Nathaniel Snow, Deputy-Collector, Chatham.75.00 

Isaac B. Young, Inspector at do .50.00 

Simeon Atwood, Jr., Deputy-Collector, Wellfleet.75.00 

James Gifford, “ “ Provincetown .... 75.00 

N. D. Freeman, Inspector at “ .... 50.00 

Henry Tobey, Deputy-Collector, Falmouth.50.00 

John W. Pope, “ “ Sandwich.50.00 

John W. Davis, Inspector, Wellfleet. 


$794.00 

LIGHTHOUSE AND LIGHTBOATS, POSTMASTERS. 


Dennis Joshua, Wixon L. H.$85.00 

Franklin Baker, Hyannis L. H. . ..35.00 

Zela Wilkinson, Chatham P.O..35.00 

Joshua E. Bowley, Provincetown P.O.50.00 

Johial Simmons, boatman, Hyannis.. . 35.Oo 

David N. Nickerson, boats.50.00 

Chatham Lights, small “.$50.00 

Provincetown “ “.50.00 


$340.00 

HOSPITAL PHYSICIANS. 

John M. Smith.$100.00 

George W. Doane.100.00 

Samuel H. Gould.100.00 

Jeremiah Stone.100.00 


$400.00 

794.00 

355.00 


$1,549.00 

[The following appears on the back of the exhibit]: — 

“ List of officers, and what has been paid to Collector of Customs, J. M. Day, 
1861.” 

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1882.] 


SENATE — No. 150. 


875 


TESTIMONY OF DANFORTH S. STEELE. Sworn. 

Direct Examination by Mr. Wadleigh. 

Q- — Do you know Mr. Roclman, who was the mate of the light- 
boat in 1861 ? A. —Yes, sir, I do. 

Q. — You also know Judge Day ? A. — I do. 

Q .—And were you, or not, on intimate and friendly terms with 
Judge Day in 1861 ? A. —l r es, sir. 

Q. — State whether, or not, you accompanied Mr. Rodman to 
Judge Day’s for the purpose of seeing what could be done towards 
getting him a place on the light-boat? A. — I remember Capt. Rod- 
man secured the position. 

Q. —Whether, or not, you had a conversation with Judge Day in 
regard to that appointment? A. — I did. 

Q. —Where was Mr. Rodman at that time? A. —I could not 
tell you whether he was with me or not: he went with me once to 
see Judge Day, and that is the only time, with regard to the 
position. 

Q. —Now, at that time or an} T other, did 3*011 have any talk with 
Judge Day in which you learned that something would have to be — 

Mr. Thompson. I object to that: that is starting altogether 
wrong. 

Mr. Wadleigh. Is that so ! 

Mr. Thompson. That is precisely so. 

Q. —State whether, or not, you had any conversation with Judge 
Day in reference to any amount being paid by Mr. Rodman. 

Mr. Thompson. I object to that, certainly. 

Mr. Wadleigh. Will you please tell me what I should ask? 

The Chairman. What is your objection, Mr. Thompson? 

Mr. Thompson. My objection is, that it is a leading question, and 
puts into the witness’s mouth the reply which the counsel wants to 
get. The witness can state any conversation he had with Judge Day 
upon the matter of the appointment; but, until he exhausts the 
witness upon that, he has no right to put a leading question of that 
kind. 

The Chairman. It strikes me it is only so slightly leading that 
it is hardly worth while to discuss it. 

Mr. Wadleigh. It is not leading at all, because I don’t want 
the other conversation : I only want this particular conversation, and 
I cannot designate that except in this particular way. 

The Chairman. The question may be put. 

Q. — Now, if you will please to state whether, or not, a conversa¬ 
tion took place between you in which he spoke of something being 
paid ? A. — No, sir : I never heard any thing of the kind. 


876 


HEARING —JOSEPH M. DAY. [March, 


Q. —Never heard any thing of the kind? A. —No, sir. 

Q. — Did you, or not, at any time, state to Mr. Rodman that he 
would have to pay something for the place, in substance ? 

Mr. Thompson. I object to that, of course. What he has said 
to Mr. Rodman is wholly immaterial: they cannot bolster up their 
own witness in that way. 

Q. — You are on very friendly terms with Judge Da}', are you not? 
A. — With everybody, sir. 

Q. —Did you sign the remonstrance? A. — I did : yes, sir. 

Q. —Did you sign the petition? A. — No, sir, I did not. 

Q. —Then, you were a little more friendly on one side than you 
were on the other? A .—Judge Day has always treated me like a 
perfect gentleman, and I have every reason to treat him so. 

The Chairman. I think you will have a right to put a leading 
question to a witness who signed the remonstrance against the 
removal of Judge Day. 

Mr. Thompson. I should like to be heard before a matter of that 
kind is decided. I am certainly not aware that because a party is in 
favor of keeping a good judge in office, that, therefore, he is neces¬ 
sarily biassed in his favor. 

The Chairman. Put your question, Mr. Wadleigh. 

Q. —Now, will you state whether or not you did state to Mr. Rod- 
man — 

Mr. Crowley of the Committee. I object to that question relat¬ 
ing to a conversation he had with somebody else. 

The Chairman. One of the members of the Committee objects to 
the putting of the question ; and now it must be decided by majority 
vote of the Committee whether the question shall be put. Don’t you 
answer the question, Mr. Witness. Will Mr. Wadleigh put the ques¬ 
tion once more, so every member of the Committee can hear it? 

Q .—Did you, or not, state to Mr. Rodman, at any time, in sub¬ 
stance, that on account of the appointment, if he was appointed, he 
would have to pay any thing to anybody ? 

[.A vote of the Committee was taken , and the Chairman announced 
that the question was excluded.'] 

Q. — Now, did you collect any money for Mr. Rodman? A. — 
Yes, sir. 

Q. — How much did you get for him ? A. — I could not say : I 
don’t remember. It was over twenty years ago. 

Q. —Now, did you collect for him the full amount to which he was 
entitled? A. —I could not say that; I didn’t get quite the amount 
of the bill. 

Q. — Didn’t get quite the amount of the bill? A. — No, sir. 

Q. — Do you remember whether, or not, it was less the amount of 


1882.] 


SENATE—No. 150. 


877 


the bill by about twenty dollars ? A. — It was a little less than the 
amount of the bill, but I could not say how much. 

Q. — Have you any impression about it? A. — I have not: no, 
sir. 

Q• — Do you know the reason why you didn’t get the full amount 
of the bill? A. — No, sir, I do not. 

Q. —Now, when you carried the money to Mr. Rodman, did he, or 
not, make an}’ statement as to that not being the amount to which he 
was entitled ? 

Mr. Thompson. I object to that: that cannot be competent. 

The Chairman. I think that question should be ruled out. 

Qr — Now, by whom was this amount paid to you, Mr. Steele? 
A. — Where? 

Q. — Well, yes ; where? A. — In the court-house. 

Q. — Now, who paid it to you? A. —Judge Day paid it to me. 

Q. — He was not at the custom-house when it was paid ? A. — 
No, sir. 

Q. — It was paid in his office at the court-house? A. — Yes, 
sir. 

Q. — Did you receive the money from his hands, the amount you 
did receive? A. — I received either money or check: I don’t re¬ 
member which. 

Q. —Now, was there any thing said between you and Judge Day 
at the time as to that not being the face of the amount called for in 
the bill? A. —Yes, sir. 

Q. —There was? A. — Yes, sir. 

Q. — What was said about it? A. — 1 carried a receipted bill, and 
handed it to the judge ; and he paid me a little short of the amount 
of the bill. I spoke to him something like this : “ This is not quite 
up to the amount of the bill.” I didn’t have quite the amount of the 
bill. Well, he said, Mr. Rodman knew all about that, and it was all 
right. 

Q. — Was there not any thing said, that, if it was wrong, Mr. Rod- 
man could call on him and find out about it? A .—Not that I re- 
member of. I never heard any thing of that kind. 

Q. —And that was all there was said between you and Judge Day, 
at the time, as to this amount of money? A .—That was all that 
was said about that bill, I presume: I don’t remember any thing 
else. 

Q. — Didn’t he give you to understand why he kept back part of 
the pay? A. —No. 

Q .—Did you carry and pay to Mr. Rodman all that Judge Day 
paid you? A. — I either carried it to him, or sent it to him ; either 
sent it to him, or handed it to him. 


378 HEARING —JOSEPH M. DAY. [March, 

Q. — You paid him in some way the full amount you received 
from Judge Da} T ? A. — Yes, sir. 

Q. — You didn’t keep any thing }*ourself out of it? A .—Not a 
cent: no, sir. 

Q .—Have you any impression that the amount kept back was 
twenty dollars? A. — I could not tell you. 

Q. — Was it about that? A. —I could not tell you, sir: I could 
not tell you. 

Q. — Haven’t you an} 7 idea? A. —I could not tell you whether it 
was one dollar or twenty : it was twenty years ago. 

Q .—Now, was there an}’ reason given at all as to why that was 
kept back? A. — Well, I don’t know as I thought a great deal 
about that: I didn’t inquire, I am sure. I knew I was dealing with 
two gentlemen, and they would take my word for it, and whatever I 
received from Judge Day, that Capt. Rodman would acknowlege as 
his due. I didn’t know but there had been some transaction between 
the two. I didn’t know how it came around ; and, at that time, I 
didn’t care much. 

Cross-Examination by Mr. Thompson. 

Q. — I suppose that this is a matter you haven’t thought of much 
for twenty years, have you? A. — I never thought of it till within a 
day or two. 

Q. — Hadn’t been called to your attention, you hadn’t thought of 
it since it occurred up to the present time? and who called your 
attention to it then, when it was called to your attention within a 
day or two? A. —Mr. Harriman spoke to me about it two or three 
days ago. 

Q. —What did Mr. Harriman say to you about it? A. — He 
merely asked me if I remembered the incident, sir. 

Q. — If you remembered what, — of getting some money from Judge 
Day? A .— Yes, sir. 

Q. —He didn’t ask you if you remembered of getting some money 
from Mr. Chipman, did he, the deputy-collector? A. — I never had 
seen Mr. Chipman then, to know him. 

Q. — He didn’t ask you that question at all? A. —No, sir: I 
think not. 

Q. — Do you know whether this man went in at the middle of the 
quarter, or the beginning of the quarter? A. — I don’t remember. 

Q. — And you have no recollection as to the amount of money you 
received? A .—No, sir, I have not. 

Q . — You don’t mean to say that you carried a bill to him, do you? 
A. —I do, yes, sir: I carried a receipted bill to him, I know that. 

Q. —It wasn’t an order, was it, for money? A .—It was a re¬ 
ceipted bill for so much service. 


1882.] 


SENATE —No. 150. 


379 


Q •—And you feel sure that it wasn’t in the form of an order? 
A. —Nothing more or less than a common bill for services rendered. 

Q •—Who was it made out against — do you remember? A. —I 
do not. 

Q •—Don’t know whether it was made out against the United 
States or how it was? A. — 1 don’t. 

Q. (By Mr. Cook of the Committee.)—‘What was the bill for? 
A. — I can guess it was for services rendered as mate aboard the 
light-boat. 

Q . —Did you read the bill, sir? A. — I presume I did. 

Q. (By Mr. Thompson.) — Do you remember any thing in regard 
to it, — whether it was on a printed blank or was written ? A. — I 
don’t. 

Q. —Haven’t any recollection about that? A. — No, I have not. 

Q —Whether it was in print or in writing? A. — I could not tell 
you, sir. 

Q. — Don’t recollect any thing about that? A. —No, sir. 

Q. (By Mr. Wadleigh.)— Did 3011 state — I didn’t understand 
distinctly — did you state that at the time this transaction took place 
you had not seen Mr. Chipman? A.— I never had seen Mr. Chip- 
man then to know him. 

Q. —Then, you are sure this was not paid you by Mr. Chipman? 
A. —I am sure Mr. Day paid me. 

Q (By Mr. Thayer of the Committee.) — Did Mr. Rodman ever 
express to you any unwillingness to accept less than the amount of 
his bill? A. — No. 

Q. — You are positive he never expressed to you any dissent at 
taking an amount les3 than the amount of the bill? A .— Never 
heard a w T ord from him. 

Q. — Never heard a word from him, good, bad, or indifferent? 
A. —No, sir. I would state, I presume I told him that was all the 
money I received from Judge Da} 7 , and he might have said some¬ 
thing about that; but it was all satisfactory, however. 

Q. —My first question was, if he said any thing to you? A .—I 
can’t remember if he said any thing, but I presume I explained that 
was all the money I received for the amount of the bill. 

Q .— Then, you wish to be understood as saying that you don’t 
remember whether he said any thing or not, but, if he did say any 
thing, it was all satisfactory as to the amount he received? A .— 
Yes, sir. 

Q. (By Mr. Wadleigh.) —Do you mean, when you say “ it was 
satisfactory,” that he was satisfied that that was all the money you 
got from Judge Day for him? A. — Yes. 

Q. — That was what you meant ? A. — Yes, sir. 


380 


HEARING —JOSEPH M. DAY. [March, 


Q. (By Mr. Thayer of the Committee.) —Yon say there was no 
talk you can remember, whereby Mr. Rodman expressed any dissat¬ 
isfaction? A .— He didn’t express an}’ dissatisfaction with me. 

Q .—Whether it was the amount you got from Judge Day or 
whether it was what he ought to receive, — either way? A. — I 
don’t remember, now, but what he w T as perfectly satisfied with the 
amount he received, and that he received the full amount of me. 

Mr. Thayer. I so understood you, sir ; and I merely wanted to 
know whether you wanted to change it in any way, or not. 

Q. (By Mr. Wadleigh.) — Mr. Steele, can you state that he did 
not express dissatisfaction with the amount, and inquire of you how 
it happened that he didn’t get the full amount of his bill? A .—I 
cannot tell that he did not, sir, but I tell you to the best of my recol¬ 
lection. 

Q. (By Mr. Thompson.)— And the best of your recollection is, 
that he did not express any dissatisfaction either with the amount 
received or with you? A. — I don’t think he did. 

Q. —Or with Judge Day? A. — I don’t think he did. 

Q. (By Mr. Street of the Committee.)—I would like to know 
whether it was through your influence that Mr. Rodman got this 
appointment on the boat? A. — I lent him some pretty strong help. 

Q. —At the time he received this appointment did you give him 
to understand that there would be something taken out of his salarv ? 
A. —No, sir, I never did : I didn’t know any thing about it. 

Q. — That he would have to pay any thing in any way ? A. — No, 
sir : because that is something I never knew of. 

Q. (By Mr. Crowley of the Committee.)—Did this man Rod- 
man ever complain to you that he paid any thing for the office? 
A. — I don’t remember he ever did. 

Q. — Don’t remember he ever did ? A. — No, sir. 

Q. —Are you friendly with Mr. Rodman now? A. — I have not 
seen him for four or five years. 

Q. — Where does lie live now? A. — Lives in Wellfleet. 

Q. — You knew him all the time up to four or five years ago, saw 
him occasionally? A .—-I have seen him only three or four times in 
fifteen years. 

Q. —He never complained to you that he was charged by Judge 
Day money for getting his place? A. — I have not had five minutes 
talk with him for the last fifteen years. 

Q . (By Mr. Wadleigh.) — There is one thing I want to ask you : 
you answered that you never knew that Judge Day was going to 
charge him any thing,— did you in any way understand that the 
officers appointed by Judge Day were expected to contribute some¬ 
thing to him? A. — No, sir, he never gave me to understand — 


1882.] 


SENATE —No. 150. 


881 


Q • —I don’t ask you that: I ask you whether 3*011 understood, in 
any way whatever, from any source whatever, that the officers 
appointed upon Judge Da 3 *’s recommendation were expected to con¬ 
tribute something? 

Mr. Thompson. Do you think that is a fair question? 

Mr. Wadleigh. Do you object to it? 

Mr. Thompson. Yes, sir, I do. 

The Chairman. I think it is to be ruled out. 

\_The counsel for the petitioners here rested their case.] 


THE REMONSTRANTS’ CASE RESUMED. 

The Chairman. Are the remonstrants read} T to proceed? 

SMITH K. HOPKINS. Sworn. 

Direct Examination by Mr. Burdett. 

Q. —You are clerk of the supreme and superior courts for the 
county of Barnstable, are you not? A. —I am, sir. 

Q .—Will you state whether, on the dockets of the Superior Court, 
you find any entries under the case of the Evangelical Society of 
Hyannis, against Cyrus A. Baker, William G. Baker, and Hiram 
Nye? A. — I find three cases against the Evangelical Congregational 
Society,— one against Hiram Nye, one against William G. Baker, 
and Cyrus A. Baker. 

Q. —Just read the docket entries in the first case. A. — “ Evan¬ 
gelical Congregational Society of Hyannis v. Hiram Nye,”' was 
entered October, 1870 , declaration in writ and appearance filed and 
continued. Continued from term to term to April term, 1873 , and 
then continued without costs; October term, 1873 , defaulted, and 
continued for judgment; April, 1874 , continued for judgment; Octo¬ 
ber, 1874 , judgment for demandants. 

Q. — Is that all? A. — I never saw the docket before. 

Q. — Now, read the entry in the next case, please. A. — The 
same term, October terra, the clerk who was officiating at that time, 
— the Evangelical Congregational Society of Hyannis v. William E. 
Baker, the same entries as in No. 12 , and under that, October, 1874 , 
judgment for demandants ; and in the case of the Evangelical Con¬ 
gregational Society at Hyannis v. Cyrus A. Baker, the same entries 
as in No. 12 , October, 1874 , judgment for demandants. There are 
at the April term entries similar to what I read in the first case. 
They are precisely alike. 

Q. — What counsel was entered for the demandants, and what for 
the defendants? A. — On the docket the name of 41 Day ” is written 
on the left-hand side for the plaintiff. 


382 


HEARING —JOSEPH M. DAY. [March, 


Q. — Or demandants it would be in this case? A. — Yes, sir: 
and for the defendants or respondents, Marston and Crapo ; the same 
in Nos. 13 and 14. 

Q. — Are there any other entries in relation to those cases, which 
} t ou find? A. —This is the docket of the April and also the Octo¬ 
ber term. The entries are similar, except that the clerk marked the 
same entries as No. 12 on Oct. 12. 

Q. — Are there an}’ others in that docket? A. —No, sir: not 
here. 

Q. —Are there entries on the dockets for 1870, 1871, 1872, and 
1873 ? A. — I read them all over carefully, and found them precisely 
like those so far as the docket extended for that year; but the prac¬ 
tice is to cop}^ from one docket to another ever}’ year. 

Q. —After the judgment is entered? A. —No, sir: after that it 
goes off. 

Q. — So that } t ou have read the final entries? A. — Yes, sir. 

Q. — Those being the ones where the judgment is rendered ? A. 
Yes, sir. 

Q. —And other entries are on previous dockets? A. — Yes, sir. 

Q .—They are simply carried along from term to term? A .— 
Yes, sir : I should have brought them along — 

Q. —Now, have } T ou the writs in these cases? A. — I have, 
sir. 

Q .—If you have, you ma} T produce them. A. [Showing docu¬ 
ments.] — Those are all the papers in Nos. 12, 13, and 14. 

Q. —In case No. 12 we have here a writ running against Hiram 
Nye of Barnstable, returnable to the Superior Court on the second 
Tuesday of October, 1870. It is dated 12th September, 1870, and 
contains a plea of land, being a writ of entiw in which “ the Evan¬ 
gelical Congregational Societ}’ of Hyannis demands of the said Nye, 
a piece, or parcel, of land situated in H} T annis, a village of the 
town of said Barnstable, bounded as follows,” etc. Mr. Burdett 
read the description of the land, and said, “ Case No. 13 is that of 
the Evangelical Congregational Society of H} r annis against William 
G. Baker, being, like the other, a writ of entr} T , returnable at the 
Superior Court on the second Tuesday of October, 1870, and dated 
12th of September, 1870, being a plea of land against William G. 
Baker. In this case there is also an appearance b} r Marston and 
Crapo, being the onl} T counsel. Case No. 14 is a writ of entry by 
the Evangelical Congregational Societ}’ of Hyannis against Cyrus 
A. Baker, returnable at the Superior Court, dated Sept. 12, 1870, 
and contains a plea of land; and the only other paper on file in that 
case seems to be an appearance for the defendant by Marston and 
Crapo. This is all we desire to ask the witness in this connection. 


1882.] 


SENATE — No. 150. 


888 


FREEMAN H. LOTHROP. Recalled. 

Direct Examination by Mr. Burdett. 

Q* —What is your full name? A. — Freeman H. Lothrop. 

Q' — 1 ou are now register of probate and insolvency for the county 
of Barnstable? I am, sir. 

Q- — Have you with you the will of one Betsey Kelley? and, if so, 
will you produce it? A. — I have, sir. 

Q. — Is this it [showing paper] ? A. — That is it, sir. 

Mr. Burdett. I think, perhaps, Mr. Chairman, I had better read 
a clause from the will. Without having opportunity to examine this 
very fully, I will read now. And it may be, other portions of the will 
may become material: — 

[Reading.] 44 5th, I give and bequeath to the Evangelical Con¬ 
gregational Church and Society in Ilyannis the use and improvement 
of my homestead estate in Hyannis, containing one-half acre of land, 
more or less, with the dwelling-house and other buildings thereon, so 
long as the}’ shall continue to support an orthodox, trinitarian, con¬ 
gregational minister; but if the} 7 shall ever cease to support a min¬ 
ister of said faith and belief (except during accidental or temporary 
intervals), for want of ability to support the gospel, I then order that 
said homestead estate be sold, and that the proceeds accruing from 
said sale be given to the Home Missionary Society, to be applied 
to the charitable uses and purposes of said society. 

4 4 6th, I also give and bequeath all the rest and residue of my estate, 
of every description remaining, not otherwise disposed of by the pro¬ 
visions of this will, to the aforesaid Evangelical Congregational 
Church and Society, for the support of a preached gospel, thirty dol¬ 
lars annually, to be applied for that purpose until the whole amount 
devised is.expended. 

44 7th, I nominate and appoint Hiram Nye of Hyannis and Bradford 
L. Crocker of East Boston to be sole executors of this, my last will 
and testament, hereby revoking all former wills by me made.” So 
far as my examination goes, that is all we want at present. 

Q. (By Mr. Burdett.) —Now, have you the account, or accounts, 
of the executors of Betsey Kelley’s estate? A. — I have two ac¬ 
counts. 

Q. —Have you examined these accounts, Mr. Lothrop, at all? A. 
— I have glanced at them, and copied one, I think. I don’t think I 
have examined them. I am not certain that I copied it. 

Mr. Burdett. The first of these accounts, Mr. Chairman, — one 
is allowed the twelfth day of March, 1872, and the other one is 
allowed the fourteenth day of July, 1874. Now, the only thing that 
is material, perhaps, about this account is this, which I will state, 


384 


HEARING — JOSEPH M. DAY. [March, 


— and, if it turns out to be correct, it will be very important; if incor¬ 
rect, I may be corrected, — that there is not an item of any kind 
charged to J. M. Day or as paid to J. M. Day; and there does 
appear on the second account, which includes the accounts of both 
executors, a payment of George A. King’s bill, $77, and of George 
Marston’s, $45.90 ; and so far as I have been able to see, or have 
been informed, those are the only items that seem to be attorney’s 
fees. Certainly nothing appears here as having been paid to J. M. 
Day. There is reference here, Mr. Chairman, in the first account, to 
something else: “Charges of administration per account rendered 
herewith, $207.75.” Now, Mr. Lothrop, if you have an “account 
rendered herewith,” let me see what it is. 

Witness. I don’t see an}', sir. 

Q. — Where are the other papers? A. — These are all the papers. 

Q. — Now, in relation to the estate of Levi L. Goodspeed, I want to 
ask some questions. Have you the papers in that case here? A .— 
1 have, sir. 

Q. — Will you state whether there are among the papers in that 
case any administrator’s account yet rendered? A. —There is not, 
sir. 

Q. — There is no account rendered in that case. The amount of 
the estate of Levi L. Goodspeed was how much? A. — The amount 
of the real estate was $12,172.83; the personal property was $10,- 
467.41. 

Q. —That appears from the inventory? A. — Yes, sir. 

Q. —Now, in case of Varanus B. Nickerson. Have you, since 
your last testimony here, in which you stated you had been unable to 
find the papers, found them? A. — -I have found them. I stated I had 
been unable to find the papers. I looked among some of the papers ; 
and, after I went back a good ways, I found twenty or thirty cases 
filed away in another drawer. These had escaped my search. 

Q . (By Mr. Thompson.)— State now how you came to find out 
they were there. A. —Judge Day recommended me to look into the 
locked drawer, and I looked. 

Q .— You had the key to that drawer? A. —Yes, sir. I didn’t 
look there before, but among other papers. They were properly filed, 
some twenty or thirty cases. 

Mr. Thompson. I wish to call the attention of the Committee to 
the fact that these accounts are not allowed at all, upon notice; and 
simply what they amount to is, accounts filed. They do not purport 
to be by consent or on notice, and have no force or validity except as 
papers filed in court. 

Mr. Harriman. Are they not allowed by the judge? 

Mr. Thompson. They are. I stated the fact that these accounts 


1882.] 


SENATE —No. 150. 


885 


are not allowed either b}" consent or notice ; and of course they have 
no validity, except as accounts are filed. 

Mr. Wadleigh. The facts can be shown b} 7 testimony. 

Mr. Thompson. Well, sir, I ask you if upon that there appears to 
have been any notice given, or consent, — if there is any thing to 
show that notice was given? 

Witness. There appears to be no evidence of notice given, but 
there is this statement: — 

“ The undersigned, being all the parties interested, have examined the fore¬ 
going account, and request that the same be allowed, without further notice. 

MASSACHUSETTS HOME MISSIONARY SOCIETY, 

By C. Demond, Treasurer. 

EVANGELICAL CONGREGATIONAL SOCIETY OF HYANNIS, 

By C. H. Nye, Committee .” 

Then the words, u Notice having been given to parties interested,” 
are stricken out. 

Mr. Thompson. And that therefore there was nothing for Judge 
Daj’ to do in the matter, except pass it as a matter of form? 

Mr. Harriman. The statement has been made, about this account 
of Marston and Crapo’s. There is another item, — “Legal advice, 
S15.”* 

Mr. Wadleigh. That is in Mr. Nye’s account. 

Mr. Harriman. It is here. 

Mr. Wadleigh. [Showing item.] There it is ; and I will call the 
attention of the Committee to another item in Mr. Crocker’s bill, and 
that is, “ Legal advice, counsel fees, 810.” 

Cross-Examination . 

Q. (By Mr. Wadleigh.) —Mr. Lothrop, did you have there the 
vouchers on which that account is based? A. —No, sir. 

Q. —Aren’t they on file in the court? A. —Not that I know of. 

Q. —Have you made search for them? A. —I have not, sir; 
that is, 1 have searched in the only places they would be likely to be. 
The papers in each case all purported to be filed in the same manner, 
and I brought all the papers there. 

Q. — Now, on the account that Bradford L. Crocker rendered, 
there is an item of counsel fees, 810. Is there any voucher on file 
to sustain that item in this account? A. —I don’t think there is. 

Q. — Tell me, if you can, the date upon which that will of Betsey 
Kelley was proved and allowed. A. — At probate court, on the 14th 
of January, 1868. 

Q. — And by whom was it allowed? A. — J. M. Da} r , judge of 
the probate court. 


386 


HEARING —JOSEPH M. DAY. 


[March, 


Q. (By Mr. IIarriman.) — I wish to ask you a few questions in 
regard to the case of Varanus B. Nickerson, which you were not in a 
position to answer when on the stand before. Whose handwriting is 
that warrant signed in? A. — I should call it J. M. Day’s. 

Q. —That was a warrant for what? A. — In the insolvent case of 
Varanus B. Nickerson, dated 23d of August, 1864. 

Q. — By whom is that bond approved? A. — I should call that 
signature J. M. Day’s. 

Q. —Bond of Ebenezer Bacon and Prince S. Crowell, assignees of 
Varanus B. Nickerson, approved Sept. 17, 1864. By whom is that 
decree signed? A. — By J. M. Day, in my opinion. 

Q. —Decree vacating proceedings in the case of Varanus B. Nick¬ 
erson : the warrant on the petition is dated May 16, 1865, the oath 
of the petition is June 9, 1865, and that appears to be the date of 
the decree vacating the proceedings. It doesn’t correspond exactly 
with the docket. 

Q. (B} r Mr. Burdett.)—I want to ask you, Mr. Lothrop, if 
administrators and executors ever leave on the files of the probate 
court vouchers for such an item as “ counsel fees ten dollars,” which 
was mentioned by the counsel on the other side, or an 3 r vouchers for 
their accounts? A. — So far as my knowledge extends, it is not 
their custom. 

Q. (By Mr. Wadleigh.) — Isn’t it a custom in that county when 
an account is carried in in that way, for the administrator or executor 
to produce the vouchers to show that the items in his account are 
correct? Isn’t that the custom? A. —I have had but four months’ 
experience in that office as yet; but so far, I think unless the account 
is questioned by some one, and unless the judge desires to see 
whether a charge that looks large, is correct, I think nothing is 
shown. 

Q. — Then, the practice in Judge Day’s court is to allow accounts 
without requiring the production of the vouchers on which the ac¬ 
counts are based? A .—I think it is, after the relative’s assent to 
the account. In some cases, if the judge glances at the account, and 
sees an}^ thing to inquire about, he does so. I don’t think it is cus¬ 
tomary to go over the full account. 

Q. (By Mr. Thayer.) —How long have } t ou been register down 
there? A .—I entered upon the duties of my office Nov. 1, last,— 
four months. 

Q .—You wasn’t register at the time these accounts were filed? 
A. — I was not, sir. 

Q .—When was your attention first called to the account of Brad¬ 
ford L. Crocker, the final account of B. L. Crocker, one of the exec¬ 
utors of Betsey Kelley, which bears date March 12, 1872? A. — I 


1882.] 


SENATE —No. 150. 


887 


have no recollection that it was called to it until I received a sum¬ 
mons, a few weeks ago, to appear here, and bring the papers of Bet¬ 
sey Kelley along with me. I did so, and brought the papers along. 

Q' — Did you bring this paper before? A. —The papers in regard 
to Betsey Kelley’s will? 

Q . — The first account of B. L. Crocker. A. —I don’t know 
whether the account was one of the papers that were here in my pos¬ 
session. 

Q •—That is what I am trying to root out. A .—I don’t think 
that paper was ever brought before. That is the paper referred to in 
that account. 

Q . — I mean this paper in my hand. A. — That was here the 
other day, as the record shows. 

Q. — Do you know whether you brought the account that this 
refers to, the other day? A. — I don’t think I did. 

Q. —Wh} T not? A. — I didn’t know that it was in the probate 
court. 

Q .—How do you account for “ charges of administration as per 
account, rendered herewith ” ? A. — It is possible it might have been 
filed with that paper some ten }’ears ago. 

Q .—And how do } T ou explain its going out of the probate court, 
if filed there? A. — Possibly b\ T the carelessness of some former 
register; but I have no reason to believe that it was ever filed in 
the probate court. 

Q. — “Charges of administration as per account rendered here¬ 
with,” and no account filed? Where is the account rendered, then? 
A. —That is not for me to sa}', sir. I didn’t make the account. 

Q. —Then, I understand 3 ’our impression is that Bradford L. 
Crocker filed that paper in court, and, after filing it, the charges of 
administration were allowed? A. — I did not say so, sir. It is my 
impression : I don’t know any thing about it, and don’t remember the 
circumstances of it. 

Q. — You come on a summons now? A. — Yes, sir. 

Q. — Were you requested to produce the papers connected with 
the account? A. —I was requested by the summons to bring all 
papers bearing on the case. It is a printed summons. I have been 
previously requested by members of the Committee to bring the 
papers; but whether I was requested by Judge Day to bring them, 
I don’t know. 

Q. — If you return to your office, and find any paper like the one 
referred to there, will you forward it? A. — Certainly : I have never 
seen any paper of that kind. 

Q. (By Mr. Burdett.) —Mr. Lothrop, may it not be, where the 
account is referred to, that an account was produced as a voucher, 


388 


HEARING —JOSEPH M. DAY. [March, 


to show the expenditures, and that the items were allowed as a whole 
after the voucher was exhibited? A. —I think very likely, sir. I 
should presume, if that account was presented with the amounts 
shown in that way, that Judge Da} 7 would require some evidence that 
that was a proper account, and the party presenting the itemized 
account might still retain it. 

Q. (By Mr. Thayer.) —Is it customary to permit an adminis¬ 
trator to file an account of $207.75, and ask that it be allowed, with¬ 
out a detailed account, by simply bringing in the figures on another 
piece of paper, not intended for the public gaze, and that this shall 
be the only thing that the heirs and creditors are to see ? Is that 
the wa} T it is done in that court? A. — I am not qualified to answer 
that. 

Q. — How has it been since }’ou have been there? A. — My duties 
have nothing whatever to do with the examination of the accounts. I 
am very busity engaged on every court-da} f attending to the records, 
and the accounts are passed to the judge. All parties interested 
settle with him ; and unless some dispute came up with regard to 
an account, in}’ attention would not be called to it at all. 

Q. — Have you noticed other people file charges of administration, 
and observed whether the}*- didn’t file itemized accounts of how the} r 
made up their charge? A. — I don’t think an}’ had passed, except¬ 
ing the itemized accounts like that [showing]. 

Q. —Then, you don’t undertake to say that this is the rule, that 
they can put down $207.75 and bring in a piece of paper as the basis 
of it, and carry it off again. You don’t mean to say that is the 
rule ? A. — Certainly not, sir. 

Q. (By Mr. Street.) —Since you have been there, has it been 
customary to have accounts filed and allowed without vouchers being 
furnished? A. —Yes, sir: unless these are considered as the 
vouchers. 

Mr. Thompson. If the Committee would allow me to make a 
suggestion. This is the first account, and the accounts would be 
all open until the final one, which, as the assent of all parties who 
have any interest in it could see, was properl}’ examined. The execu¬ 
tors’ account would certainty be open till the final account; and it 
seems this account was filed in 1872, and the final account was set¬ 
tled in 1874, and it was by the consent V)f all parties in interest. 

The Chairman. I understand that copies of all those papers go in, 
and they will show. 

Q. (By Mr. Wadleigh.) —Your testimony thus far leaves in my 
mind some doubt whether or not you intend to be understood, that 
according to the course of business, when this account containing the 
large item $207.75 was filed, the bill of items which that covers was 


1882.] 


SENATE —No. 150. 


889 


filed or not filed ? Do 3 ’ou think it is probable that the bill of items 
was filed the first time when that account was rendered? A .— I 
should like to answer that not quite directly. 

Q. — Yes, sir : answer it in your own way. Simply tell us in your 
own way what } T ou can. A. — Here is an account — and by the way, 
bear in mind that I have had a very short experience in the court — 
here is an account which I should sa}% in looking over, the judge 
would see that it was assented to by the parties interested. He 
would take the whole account, and not scrutinize all the little items, 
but pass it on the assent of the parties to the account. This amount 
he would be likely to open, and, there being three accounts, he would 
see that that was rather a loose way of putting the statement, that it 
was “rendered herewith,” and he would be very likely to ask for 
the account, and it might not have been filed. 

Q. (By Mr. Wadleigh.) —Inasmuch as that account purports to 
be based on an account with the items rendered, would it not be 
probable there would be an account with items put on file ? A .— 
Yes, sir: I should think so. On the other hand, I see no reason 
why they should not be. 

Q. —You have searched the files? A. — I simply searched these 
papers. 

Q. —Did 3 ’ou find those among the regular files or in the drawers? 
A. — No, sir : those were filed away, as it was not necessary to get 
at them ; but these are probate papers. They were carefully filed 
with the papers relating to each case, and I have never seen any 
other papers in this case. 

Q. (Bj t Mr. Crowley.) —Your experience in the probate court 
has only extended four or five months? A. —Yes, sir. 

Q. (Bv Mr. Wadleigh.) —Now, those words, “account ren¬ 
dered herewith,” would they be satisfied with the account rendered 
to the judge at the time for examination? A. — I should think so. 

Q. — And then the party presenting that account might take it 
awa} T ? A. —Yes, sir. 

Q. — I understand Mr. Burdett to claim that the land demanded 
by the writs is the same land which was given to the Congregational 
Society, or whatever it is, Evangelical Society, by the will of Betsey 
Kelley. Is that so, Mr. Burdett? 

Mr. Burdett. Yes. 

Mr. Wadleigh. And that the title of the Congregational Society 
rested upon that will? Is that so? 

Mr. Thompson. That was a conveyance. The will was the con¬ 
veyance. 

Mr. Wadleigh. The will was the conveyance under which they 
held. Then they claim, as I understand it, that the title of the Evan- 




390 HEARING — JOSEPH M. DAY. [March, 

gelical Society, upon which rest their rights in these suits, was per¬ 
fect under this will, and that the land was the land devised by the 
will. Now we admit it. 

Mr. Burdett. And the estate was insolvent at the time. 

Mr. Wadleigh. We admit that too. 

Mr. Thayer. How do the dates of the writs in the Superior Court 
compare with the dates of the letters of administration upon Bet¬ 
sey Kelley’s estate? 

Mr. Harriman. All after. 

Mr. Thompson. I don’t remember what the date of the writ was. 
Mr. Burdett. Twelfth of September, 1870. I remember that. 
Mr. Thompson. The will was proved in 1868, and the writs issued 
in 1870. 


Miss MARY A. FRENCH. Sworn. 

Direct Examination by Mr. Burdett. 

Q. — What is your full name, madam ? A. — Mary A. French. 

Q. — Do you know Judge Day ? A. — I have seen him and met 
him. 

Q. — Where have j’ou met him? A. —At Falmouth. 

Q .—When was it you met him there? A. — I don’t know as I 
can give the exact date. I think it was two years ago last fall. 

Q .—That would bring it in the fall of 1879? A. —About that 
time. 

Q .—Do 3 *ou know for what purpose he was in Falmouth about 

that time? A. —I think he was there for something about the court, 

but I don’t know definitely. 

%/ 

Q. — Where were you stopping in Falmouth at that time? A. — 
At Baker’s hotel then. 

Q. (B} r Mr.'T hompson.)—T hat was kept by whom? A. —Mr. 
Elihu Davis. 

Q. — Did Judge Day spend the night at that hotel while }'ou were 
there ? A. — Fie did. 

Q. (By Mr. Burdett.) — And w r ho else of Judge Day’s family, if 
anybody, was there at the same time? A. — His wife was there, 
and his son. 

Q. — And how many nights did you spend in the hotel, when they 
were there? A .—Only one. 

Q. — Who else was in the hotel that you can name now, except 
Mrs. Day and Mr. Thomas Day? A. — I think Mr. and Mrs. Davis, 
and their daughter. There might have been othei*3 : I don’t recollect. 

Q. — Have you any recollection of Mr. and Mrs. Davis, and their 
two daughters and their son, also being there? By the way, is Mr. 
Davis living now? A. —No, sir. 


1882.] 


SENATE —No. 150. 


891 


Q •—Were }’ou at the hotel, before Judge Da} r arrived? A .—I 
think I was. I think I came on the noon train ; and he arrived, I 
think, on the evening train. 

Q • —Have you any recollection how long it was, after the arrival 
of the evening train, before Judge Day appeared at the hotel? A .— 
No, sir: I think it was but a short time. 

Q- — Did } t ou spend any part of the evening in the presence of 
Judge Day? A. —Yes, -sir. 

Q' — Who else was present? A. —His wife and son, and I think 
Miss Davis was present. 

Q. — Miss Davis who is here? A. —Yes, sir. 

Q . — In what part of the house did }'ou spend the evening? A. — 
Part of the time in the parlor. 

Q .—Were Judge Day and his family in the parlor at the same 
time? A. —Yes, sir. 

Q. — Now, Miss French, will you state whether, or not, Judge Day 
was in any degree under the influence of liquor, so far as } T ou could 
see? A. —No, sir: I should think he was not. 

Q. — Did he act like a sober man, or a drunken man? A .— 
He appeared like a sober-man. 

Q. — And passed the evening with the rest of you as anj T gentle¬ 
man would pass an evening? A. — Yes, sir: I retired to my room 
at half-past eight, and left them there. 

Q. — How long do you think you saw Judge Day during the even¬ 
ing? A. —Possibly half an hour. 

Cross-Examination. 

Q. (By Mr. Harriman.) —Were you at the probate court your¬ 
self? A. — No, sir. 

Q. — Do you know whether Judge Day’s son came to act as regis¬ 
ter pro tern ., on one occasion, in Mr. Thacher’s absence? A. — No, 
sir. 

Q. — Heard nothing about it? A. — No* sir. 

Q. — The next day ? A. — No, sir. 

Q. —His son and wife were with him? A. —Yes, sir. 

Miss MARY E. DAYIS. Sworn. 

Direct Examination by Mr. Burdett. 

Q. — Your full name is Mary E. Davis, is it not? A. —It is. 

Q. —And you are the daughter of Mr. and Mrs. Davis who kept 
the hotel in Falmouth? A. —Yes. “ Baker’s Hotel ” was the name 
of it. 

Q. —Is there any hotel in Falmouth by the name of Davis’ Hotel? 
A. — There is not. 


392 


HEARING —JOSEPH M. DAY. [March, 


Q. — Is there an} T hotel except Baker’s Hotel and the Succanes- 
set House? A. — Not in the village. 

Q. — Now your father is dead, is he? A. — He is. 

Q. — Have 3 *ou been in the hotel w T hen Judge Day stopped there? 
A. —I have. 

Q. —How many } r ears have you any recollection of Judge Day’s 
stopping at your father’s hotel? A. —I know he was there in 1878, 
’79, and ’80. 

Q. — Are 3 r ou positive about that? A. — I am. 

Q. — Have you seen him on each of these occasions, or not? A. 
— I have. 

Q. — Do you remember the time that Mrs. Day and the judge’s 
son were there? A. — I do. 

Q. — Do you remember what year that was? A. —It was in 
1879. 

Q. — The 3 'ear before, who was with him? A. — He was alone, 
as Mr. Thacher stopped at the Succanesset House. 

Q. —And Judge Day stopped at your house? A. — He did. 

Q .—Now we will make an inquiiy covering 1878, ’79, and ’80. 
What was Judge Da 3 T ’s condition as to sobriet 3 T at all those times? 
A. — I never saw him when he was intoxicated. I alwa 3 ’s spent the 
evening in the room with him, and I never noticed airy thing but 
what was all right. 

Q. —Would you have known whether he was intoxicated, or not? 
A. — Yes, sir, I would. 

Q. — Do 3 ’ou mean to sa 3 7 whether, or not, he was intoxicated in 
1879 or 1880? A. — I should sa 3 T he was not. 

Q. —Do you remember the occasion when Mrs. Day and Mr. 
Thomas Da 3 7 were there? A. —I do. 

Q .—How was the evening passed then? A. — Passed in the 
parlor with our famity and Miss French. 

Q. — Did you notice any thing peculiar in his condition then? 
A. — Nothing. 

Q. — Or in 1878, 1879, or 1880? A. — Nothing that I noticed. 

Q. — Did he appear like a sober or a drunken man? A. — He ap¬ 
peared perfects sober, as far as I saw. 

Q. — Do 3 7 ou remember Mr. David Bursley’s being in Falmouth at 
3 'our father and mother’s hotel in June, 1879? A. — Y r es, sir. 

Q. — You do remember it ? A. — Yes, sir. 

Q. — Do you remember how long he staid there? A. —I think 
he came about noon of one day, and went away next morning imme¬ 
diate ^ 7 after breakfast. 

Q. — Then, he passed 011 I 3 7 one afternoon there? A. — One night. 

Q. — Who oversees the house and takes care of it, or did so, in 


1882.] 


SENATE —No. 150. 


393 


1879 ? A. — My mother had entire charge of the house. Father was 
nway a great deal of the time. 

Q- — Who showed the guests to their rooms? A. — Either itself 
or my mother. 

Q* — Did your father ever attend to showing rooms at all unless he 
asked your mother? A. — No, sir. 

Q. — Now, have you any recollection as to whether, or not, Judge 
Day was at your house during the time — in June, 1879 — that Mr. 
Bursley was there? A. — No, sir, I have not. 

Q. — Can 3 ’ou say whether he was, or not? A. — I don’t think he 
was. If he had been I would have known it. I think it would be 
impossible for any one to be in the house without my knowing it. It 
is a small house. 

Q —Did you ever see Judge Day in Falmouth except in the fall 
when about to hold probate court there? A. —No, sir. 

Q . —Never knew of his being there at any other time? A. —No, 
sir : never but in November. 

Cross-Examination. 

Q. (By Mr. Wadleigh.) — What is your age, Miss Davis ? A. — 
Nineteen last August. 

Q. — And in 1879 you were sixteen years old? A. — I should say 
about that. 

Q. —Was 3 r ou in this house all the time? A. — I lived there. 

Q. —Did 3 ’ou go to school anywhere, or were 3 T ou absent an 3 ’? A. 
— I went to school in the village, — at the high school. 

Q .—What time did 3 T ou go in the morning? A .—At nine 
o’clock in the morning, and I staid till twelve; and I went again at 
half-past one o’clock, and staid till four. 

Q. —During that portion of the time 3*011 were at school, and of 
course 3 T ou could not know what was going on in the hotel ? A. — 
Probably not. 

Q. — Was 3 T ou alwa 3 T s at the hotel when 3 'ou were not at school, or 
were 3 'ou sometimes awa 3 T with your friends or relatives? A .—Of 
course I was away some part of the time : I wasn’t aliuays there. 

Q. —Then, 3^011 could not say whether — b 3 T the wa 3 *, when was this 
matter about June, 1879, first called to 3 T our attention? A. — Well, 
I should sa 3 T two weeks ago: it may be more. 

Q. — And who called it to your attention? A. —Judge Day. 

Q. —What did he ask 3 r ou? A. — He simpty asked if I had any 
recollection of Mr. Burst’s being at our house in June. 

Q. — June when? A. — 1879. I remember it was the last year I 
went to school. I know that I was at home, because he drove up to 
the door just as I came from school. 


394 


HEARING —JOSEPH M. DAY. [March, 


Q. — In the afternoon ? A. — Noon. 

Q. — Noon. That was one of the days you went to school? A. — 
Yes, sir. 

Q. — You went to school at half after one o’clock, and staid till four ? 
A. —Yes, sir. 

Q. — Do you remember that particular day what you were doing 
after you got home from school at night? A. — I think I was about 
home. 

Q. —You don’t remember particularly, do you, after this lapse of 
time? A .—I think I was at home. I know Mr. Bursley wasn’t 
there when I got home from school: he wasn’t in the house. 

Q. —Where was he? A. — I don’t know: about the village. 
There was a conference of the churches. 

Q. — He staid there that night? A. — He did : he was there with 
my mother, and went to the church in the evening. I staid at home, 
and was in the house the whole evening. I was talking with Mrs. 
Bursley and my father. 

Q. — Mr. Bursley was not there at the time ? A. — He was with 
m 3 7 mother, at church. 

Q. — What time would you get home from school that night? 
A. — At four o’clock : I came right home. 

Q. — Are you sure that 3 r ou went directly home? A. — Yes, sir: 
I always came down home. 

Q. — And you didn’t see Mr. Bursle}’? A. — Not until tea-time. 

Q. — What time did Judge Da}’come? A. — I don’t think that 
Judge Day was there. 

Q. — You don’t remember that he was there? A. — I know that 
he wasn’t: it would have been impossible that I should not know it. 
It was a small house with eight rooms,—four occupied by our own 
family, one by Mr. Bursley, and the other two directly over the 
office. 

Q. — You don’t remember that Judge Day was there at the time 
Mr. Bursley was? A. — I don’t think so. 

Q. — Now, Miss Davis, you say this was never called to your atten¬ 
tion until two weeks ago, and then by Judge Day? A. — I do. 

Q. — Where were you when it was called to your attention? A. — 
At my home. 

Q. — Where ? A. — In Wareham. 

Q. — Do you remember any thing that Mr. Bursley did at the time 
he was there? A. — Any thing that he did? 

Q. — Yes: how do you fix the time? A .—Well, my father lived 
in Barnstable for several years, — three or four, — and I heard him 
speak of Mr. Bursley a great many times; and, as I got there, father 
introduced him to me, and said he was a Barnstable man ; and sitting 
there, and talking with them of Barnstable, I remember distinctly. 


1882.] 


SENATE — No. 150. 


895 


Q. —Remember what? A. —About his being there. 

Q. — How do you fix the time? A. — I know it was June, 1879, 
because that was the last year I went to school. 

Q. — The last year you went to school? A. —Yes, sir. 

Q. — How do you fix the time in June? A. —I know that the 
county conference was in June, and that is what he came up to. 

Q. — Now, you say Judge Day w r asn’t there at all at that time? 
A. —I do. 

Q. —Are you positive? A. — Yes, sir. 

Q. —And the matter had not been called to your attention until 
two weeks ago by Judge Da} T ? A. — Yes, sir. 

Adjourned till Friday, March 17, at 10.15 a.m. 


396 


HEARING —JOSEPH M. DAY. [March, 


ELEVENTH HEARING. 

Room 4, State House, March 17, 1882. 

Senator Bruce, in the absence of the Chairman, Senator Jennings, 
called the Committee to order at 10.25 a.m. 

Mr. Thompson drew the attention of the Committee to the testi¬ 
mony of Augustus S. Messer in 1881, saying that these words at 
top of p. 199 of the report should go in at the end of his evidence 
already reprinted, — 

“ The Chairman. The time this witness speaks of was 1879.” 

Mr. Harriman indicated his willingness to have this extract go in 
if the remonstrants’ counsel desired to use it. 

The Chairman. Now proceed with your witnesses, Mr. Thompson. 

THOMAS C. DAT. Sworn. 

Direct Examination by Mr. Burdett. 

Q. —What is your full name? A. —Thomas C. Day. 

Q. — Are } t ou the son of Judge Joseph M. Day? A. —I am. 

Q. — What is 3 ’our business? A. —I am a law 3 'er. 

Q. —Where do you reside ? A. — In Barnstable. 

Q. — Did } t ou go to Falmouth with your father in November, 1879 ? 
A. — Not with nry father — I drove to Falmouth. 

Q. — Did you meet 3 T our father there? A. —I did, sir. 

Q. — You went there for what purpose? A. — To act as register 
of the probate court. 

Q. —Why? A. —Mr. Thacher, the register, was absent at that 
time. 

Q. — You drove there? A. — I did, sir. 

Q. — With whom, an 3 r body? A. — M 3 ^ mother. 

Q. —Did you arrive at Falmouth before your father? A. — Some 
time, an hour or more, before. 

Q. — Where did 3 T ou stop ? A. — At Baker’s Hotel. 

Q. — Kept by whom ? A. — Elihu Davis. 

Q • — How long after the arrival of the evening train did your father 
arrive? A. — I should judge some ten or fifteen minutes. 

Q. — How far is the hotel from the depot? A. —In the vicinity of 
three-quarters of a mile. 

Q. — Did he ride, or walk, from the depot? A. —He rode. 

Q. — Who were present at the hotel in the evening besides your 


1882.] 


SENATE —No. 150. 


397 


father and mother? A. —Mr. Elihu Davis, Mrs. Davis, Miss Davis, 
and Miss French. There were one or two other parties in the office 
whose names I do not know. 

Q . —Did you pass the evening in your father’s presence? A. —I 
did, sir. 

Q . — Did the other people pass the evening with him, or part of 
it? A. — Yes, sir. 

Q. — Do 3 ’ou remember your father’s condition on that occasion? 
A. — Perfectly, sir. 

Q. — Was there any thing unusual in it, or different from his ordi¬ 
nary conduct or appearance? A. —Nothing whatever. 

Q. — Any signs whatever of intoxication or of use of liquor? A. 
None. 

Cross-Examination. 

Q. (By Mr. Harriman.) —Were you there in 1878? A. — I was 
not. • 

Q. — Do } T ou know where Mr. Thaclier was in November, 1879? 
A. —No, sir ; I wasn’t with him ; I couldn’t tell where he was. 

Q. — Do you know wh} r he wmsn’t attending to his duties there? 

Mr. Burdett. I object. [Question excluded.] 

Mr. Harriman. I do not wish to examine him in regard to the 
charge of 1879. 

Q. (By Mr. Thayer.) —Do you know whether the court is held 
in June, down there — the probate court? A. — Let me ask you 
whether you mean at Falmouth or Barnstable? 

Q. —At Falmouth. A. — No, sir : the regular term is in Novem¬ 
ber. 

Q. —There is but one term a year? A. —That is all. 

Q. — Are you well enough acquainted with the sessions of the 
court there to know whether any extra sessions are held there? A. 
— At Falmouth? 

Q. —Yes. A. —There have been none within six years : I don’t 
know previous to that time. 

MRS. ELIZABETH F. DAVIS. Sworn. 

Direct Examination by Mr. Burdett. 

Q. — What is your full name, madam ? A. — Elizabeth F. Davis. 

Q. — Where do }T>u reside? A. — Wareham. 

Q .—Where did you reside in 1878, 1879, and 1880? A. — In 
Falmouth. 

Q. — And at what place in Falmouth? A. — At Baker’s hotel. 

Q. —Did your husband keep that hotel? A. —Yes, sir. 


398 


HEARING — JOSEPH M. DAY. 


[March, 


Q. —How long ago did he die? A. —Two years ago in March. 

Q. — That would be March, 1879 ? A. — 1879. 

Q. — Now, Mrs. Davis, have you any recollection of Judge Day’s 
stopping at } T our house? A. — Yes, sir. 

Q. — Have you any recollection of his stopping there in the 
year 1878? A. —Yes, sir. 

Q. — In what month was it? A. — In November. 

Q. —And do you know why he was there? A. — To hold his pro¬ 
bate court. 

Q. — In 1878, in November, when he was there, did you notice 
any thing in his actions different from what you observed before or 
since? A. —No, sir. 

Q. — Any thing peculiar about his appearance or conduct, in any 
way? A. —No, sir. 

Q. — Did he give any signs of having indulged in the use of intoxi¬ 
cating liquors? A , —I saw nothing. 

Q. — Now, in November, 1879, did Judge Day come to }X>ur 
house? A. — Yes, sir. 

Q. —Any one with him in 1878, at 3 T our house? A. —No, sir. 

Q. — Do } r ou know whether Mr. Thacker was there in 1878 ? A. — 
Yes, sir. 

Q. — He didn’t stop at your house? A. — No, sir. 

Q .—Any of the members of his family with him in November, 
1879? A. —Yes, sir ; his wife. 

Q. — Anybody else in the house that evening? A. — Miss French. 

Q. — Mary A. French ? she who testified yesterda}’ ? A. — Yes, sir. 

Q. — Was your daughter there ? A. — Yes, sir. 

Q. —Did you, in November, 1879, notice any thing peculiar or 
different in his conduct from what you noticed before or since? A. 
— No, sir. 

Q. —Airy sign of intoxicating liquor? A. —No, sir. 

Q. —Any exhibition of drunkenness? A. —No, sir. 

Q. — Was he, on all three of these occasions, sober, or otherwise? 
A. —Perfectly sober. 

Q. —Did you see him in November, 1880? A. — Yes, sir. 

Q. — Was his condition any thing different from what 3 'ou described 
the other time? A. — No, sir. 

Q. — How many nights did Judge Day pass in your house in 
November? A. — One. 

Q. — On each occasion ? A. —Yes, sir. 

Q. — And went away next day? A. —l r es, sir. 

Q • — I understand you saw nothing unusual or extraordinary in 
any way in him? A. —No, sir. 

Q. — Did you see Judge Day in Falmouth in the month of June, 
1879 ? A. — No, sir. 


1882.] 


SENATE —No. 150. 


899 


Q. —Were j'ou in Falmouth in June, 1879 ? A. — I was. 

Q. —Do you remember a convention or convocation of some kind, 
of the churches there, in that month? A. —I do. 

Q. —Were you there during the whole of that convention? A. — 
Yes, sir. 

Q. — Do you remember whether, or not, Mr. David Bursley of 
Barnstable was in your house at that time? A. —He was. 

Q. — How long a time ? A. — One night. 

Q. —Do you remember when he came? A. — About dinner-time. 

Q. — And went away next day ? A. — Immediately after break¬ 
fast. 

Q. —Was 3 ’our daughter at home at that time? A. —She was. 

Q. — Was Judge Day there? A. — No, sir. 

Q. — How do you know he wasn’t there? A. — I should have 
known if he had been there. 

Q. —Who has charge of the rooms in } T our house, and who had at 
that time the rooming of your guests ? A. — My daughter and myself. 

Q. — Had your husband any charge? A. — No, sir. 

Q. — Did he give an} r attention to it? A. — No, sir. 

Q. —Would he have reported to you in case he put an} T one into a 
room? A. — I think he would. 

Q. — Then, are you read}* to say that Judge Day was there, or not, 
at that time? A. — He was not there. 

Cross-Examination. 

Q . (By Mr. Wadleigh.) — I suppose what you mean to say, Mrs. 
Davis, is, that you didn’t see him ? A. — If he had been at the house 
I would have seen him. 

Q. —Couldn’t possibly have been there without your seeing him? 
A. — No, sir, he could not. 

Q. — What is the ground for that statement? A. — I have entire 
control of the house. 

Q .—Was your husband at home at that time? A .—He was 
about home. 

Q. — What do you mean by that? A. — He was around, out that 
day. 

Q. — Was he at home, or not? A. — He was at home that day. 

Q . — What was your husband’s business? A. — Well, for the last 
few years — 

Q. — At that time? A. — He was in the hotel. 

Q. — Any thing else? A. —Nothing particular, only farming, and 

doing a little outside work. 

Q. —His business was mainly taking care of the hotel, wasn’t it? 
A. —Yes, sir, and his farm-work. 


400 


HEARING — JOSEPH M. DAY. [March, 


Q. — He was at home that day? A. — Yes, sir. 

Q. — What was you doing that day? A. —I don’t know as I 
could tell you in a moment, — my ordinary work about the house. 

Q. — Did you go to the conference ? A. — I went in the evening, 
sir. 

Q .—What did } T ou do that afternoon? A .—I was at home all 
afternoon. 

Q. — What were you engaged in? A. — Nothing. 

Q. — Work about the house? A. — No, sir: I was in the parlor 
all the afternoon. 

Q . — Who were present with you ? A. — No one, part of the time : 
my daughter was at school. 

Q. — What was 3*011 doing? A. — I don’t think I was doing any 
thing particular. 

Q. — You were sitting in the parlor? A. — I was from dinner until 
tea-time. 

Q. — Was 3 ’our husband in there any part of the time? A. — I 
don’t remember that he was : I presume he was around there. 

Q. — Was an 3 *bod 3 T in there? A. — I don’t remember that there 
was. 

Q .—Was Mrs. Bursley there? A. — She wasn’t there in the 
afternoon: she and her husband had been there, and went immedi¬ 
ately to the conference at the church. 

Q. — Did 3 t ou spend the whole afternoon there? A. — I did, sir. 

Q. — Are you sure of that? A. — Yes, sir. 

Q. — You didn’t go out of the parlor? A. — I might have gone 
out around the house. 

Q. — You don’t remember going out? A. —I don’t remember. I 
was expecting Mrs. Bursle 3 * in, and for that reason I remember I was 
waiting for her; and she staid long, and didn’t come home till near 
tea-time. 

Q. — Did 3 ^ou stay there till the 3 r got home? A. —I was there 
when they came home. I was in the parlor. 

Q. — Where was 3 r ou when they went? A. — Well, I think I was 
in the parlor when they went. I remember being there, and seeing 
them off. 

Q. — Did you take an 3 r part in seeing to clearing off the dishes 
and washing them, and that sort of work? A. — No, sir, I didn’t. 

Q. — You didn’t see to that? A. — No, sir. 

Q. — You was in the parlor? A. — Yes, sir. 

Q. — In the parlor when they went? A. — In the parlor or hall. 

Q. — Now, after dinner, did you go immediately into the parlor? 
A. —I think I did, until they left. 

Q. —Were they in the parlor until they left, both of them? A. — 
Yes, sir. 


1882.] 


SENATE —No. 150. 


401 


Q- — Are you sure? A. — Yes, sir. 

Q • — Are you sure neither went out? A. — I cannot say. 

Q • —They didn’t go out of the room? A. —I was with them. 

Q • — How long after dinner was it when they went to the confer¬ 
ence ? A. — Immediately” after dinner. 

Q.—Then you staid in the parlor all the afternoon? A. — I 
was about the house. 

Q • — When they came home from the conference, what did you do? 
A. —We had our tea then. 

Q. — What happened after tea? Where did you go? A .—I 
don’t know as I can tell exactly what spot. 

Q. —You don’t remember where 3 ’ou was? A. —I don’t remem¬ 
ber the very spot. 

Q. —What time did you have tea? A. — Six o’clock. 

Q. —Did 3 t ou go to the conference? A. —Yes, sir. 

Q. — What time? A. —-Half-past seven o’clock, as near as I re¬ 
member. 

Q .—I suppose 3 r ou can’t remember exactly the hour? A .—I 
think that was about the time. 

Q. — You think now that is the time 3 ’ou would be likely’ to go ? 
Do 3 ’ou remember any thing particular as to the exact time? A. — 
No, sir, I do not. 

Q .—You sa 3 r 3 ’ou had tea at six o’clock. What was 3 T ou doing 
between tea-time and the time 3 T ou went to the conference? A. — I 
think I was in the parlor with Mr. and Mrs. Bursley. 

Q. — Do 3 ’ou remember ? A. — I think so, — as well as I remember 
an 3 ’ thing. 

Q .—The whole time? A .—I can’t sa 3 ^ I was there the whole 
time. Most of the time I was with them, they” being old acquaint¬ 
ances of ours. 

Q. — Anybody else there? A. — No, sir: not that I think of: m 3 ’ 
own family. 

Q. — Can 3 ^ou swear there wasn’t an 3 ’ one else there? A. — I can 
swear there was. 

Q. — Was 3 ^our daughter with 3 r ou in the evening? A. —I wasn’t 
there in the evening: I was at the conference. 

Q. —Before 3 ’ou went? A. — She was about there. 

Q. — In the parlor ? A. — I think so. 

Q. —Then, 3 'ou were not around the house? A .—I was in the 
parlor most of the time. 

Q .—How long did Judge Da 3 T stop at your house? A. — He 
wasn’t there in June. 

Q. — I mean how long has he made your house a stopping-place ? 
A. —Well, sir, he has been there for several 3 T ears, at different times. 


402 


HEARING —JOSEPH M. DAY. [March, 


Q .—IIow long? A. —He was there three years before we left 
that house, and previous to that two or three 3*ears ; but I don’t re¬ 
member the exact time and date, because we left the house, and 
broke up — 

Q. — What is that about breaking up? A. — We were only in 
Baker’s Hotel four years, and previous to that three years took 
boarders. 

Q. —Then, did he stop with you before? A. —Yes, sir. 

Q. —And, when 3*011 went into the hotel, he changed and went 
there? A. —Ten years ago I was in the Succanesset House. 

Q. —Did he stop there? A. —Yes, sir. 

Q. — And when you changed he followed you? A. — Yes, sir; 
and when we were in Baker’s Hotel he came there again. 

Q .—What year did 3 r ou leave Baker’s? A.—I was there four 
years, and left there last March. 

Q. — The first year that you went there did he hold probate court 
there? A .—No, sir. 

Q. —Who did? A. —He held it at the Succanesset House. 

Q. —After that was it held at 3 T our house? A. —He only held it 
there one year, while we lived in Baker’s. 

Q. — What }^ear was that? A. — 1880 ; last 3 T ear. 

Q. —Did 3 r ou ever see anything of Judge Da3 T except when he 
came there to hold probate court? A.— I have known him a good 
man3 T years. 

Q .—How long have you known him? A, —Eighteen or twenty 
years. 

Q. — Where did you first know him ? A. — I lived in Barnstable 
four 3’ears. 

Q. —You knew him there? A. — I did. 

Q. —You have been on very friendly terms with him ever since? 
A. — Yes, sir. 

Q- — Did he ever come to Falmouth at any other time except when 
he held probate court? A. —No, sir. 

Q. — Never saw him there at any other time? A. — No, sir. 

Q. —How far is that from Barnstable? A. —Twenty-two miles. 

Q. (By Mr. Thayer.)—H ow much of a hotel was this Davis 
Hotel? A. — A small house : eight or nine rooms, sleeping-rooms. 

Q. —Did you keep a register? A. — No, we did not. 

Q • — Did you keep any thing by which you could tell the number of 
persons there each day? A. —No, sir. 

Q .—How is the front entrance of the hotel? Is there a hallway 
and rooms on either side? A .—The parlor is on one side of the 
hall and the office on the other side. 

Q .—The parlor you speak of is the parlor you were in when the 
gentleman and lady were there? A. —Yes, sir. 


1882.] 


SENATE —No. 150. 


408 


Q• —You were there? A. — Yes, sir. 

Q- —You say you didn’t see Judge Day there at all? A. —No, 
sir, I didn’t. 

Q' — Eo 3’ou know how many parties were there that day as guests 
at your house? A. — When Mr. Bursley and his wife were there? 

Q • — Yes. A. —I think no one else. 

Q —What room did they occupy in the hotel that night? A .— 
The room over the parlor. 

Q •—What room did Judge Day occupy? A. — He always had 
the same room they r had. 

Q • — And they had that room that night? A. —Yes, sir. 

Q- — Whether, if the room had been occupied during the day by 
anybody sleeping in the bed, or using the room — Judge Day or any 
one else, — whether, when you showed it to Mrs. Bursley and Mr. 
Bursley, you would have known that it had been occupied during the 
day or night? A .—I should. 

Q. (By Mr. Thompson.)—W here was the piazza of the house 
with reference to the parlor and office? Was it in front of the house? 
A. — Yes, sir. 

Q . — Do 3'ou remember what kind of weather this was in June 
when Mr. Bursle3’ was there? A. — Yes, sir; quite warm. 

Q . —Did 3’ou have 3’our windows open? A. —Yes, sir. 

Q .—If there had been an3’loud talk you would have heard it? 
A. —Yes, sir. 

Q. (B3 t Mr. Wadleigh.) —Which wa3’ does the parlor face? A. 
— It faces the west. 

Q. — Is the parlor on the corner of the house? A .—There are 
two rooms in the front of the house. 

Q. —The parlor is one corner, of course; now, which corner? 
A. —I don’t think the parlor faces the west either; it faces north, I 
should think [laughing] ; still, I don’t know. 

Q. — Do 3’ou remember which corner that is on? A. — No, sir : I 
don’t know that I do. 

Q .—How many sides of the house does the piazza extend on? 
A. — It runs across the parlor and office. 

Q. — It runs around the corner on the other side of the office? 
A. — Yes, sir. 

Q. — That is the corner away from the parlor? A. —Yes, sir : 
the office is on the other side. Our office was — the house stood on 
the corner of the street, and our office was a large room that had 
open doors on both sides ; so that I think if there had been any loud 
talking on the piazza we could have heard him in the house. 

Q. —You could hear all over the house? A. — Yes, sir. 

Q. — You sa3 r the office is a veiy large room ? A. — Yes, sir, quite 
a large room. 


404 


HEARING —JOSEPH M. DAY. [March, 


Q. — Now, the piazza that ran alongside the office ran on the other 
side of the house. How far did that run back ? A. — The width of 
the office. 

Q. —There was a stoop over it, a covering over it, I suppose? A. 
— Yes, sir. 

Q. —What was there between the parlor and office? A. —The 
hall. 

Q. — So that one room didn’t open into the other? A. —No, sir. 

Q. —Did you have an } 7 help about the house? A. — I did. 

Q. —Who? I mean at that time? A. —I don’t remember who I 
did have. 

Q. —You had help in the house? A. —Yes, sir. 

Q. — To do the work ? A. — Yes, sir. 

Q. — Have you ever made an } 7 statement different from what you 
have here? A. —Have I ever made any different statement? 

Q. —Yes. A. — No, sir. 

Q. —Have you, since the examination last year, conversed with 
anybody as to your testimony last year? *A. —-I don’t remember 
whether I have or not: I presume I have. 

Q. — Have you ever stated to anybody if they had asked you certain 
questions last year you would have had to answer differently ? A. — 
No, sir. 

Q. —Nothing of that kind? A. —No, sir. 

Q. —Do you know whether, or not, Judge Day ever drank any 
thing? A. — I don’t know that I ever saw him drink any thing. 

Q. —I asked you if you knew he ever drank any thing? A. — I 
answered. 

Q. — Have you ever seen him when you thought he was under the 
influence of liquor? A. — No* sir, I have not. 

Q. — Haven’t you stated if they had asked you with regard to 
other times you would have had to answer? A. —No, sir. 

HIRAM NYE. Sivorn. 

Direct Examination by Mr. Burdett. 

Q. — Y r our full name, sir? A. — Hiram Nye. 

Q .—You were co-executor with Mr. Bradford L. Crocker of the 
estate of Betsey Kelley? A. — I was, sir. 

Q. — Mr. Nye, do you know any thing of the delivery of certain 
deeds of real estate found in Mrs. Kelley’s house after her death? 
A. — I know of two. There were three deeds, as I understood, found. 

Q. — State what you know about the matter. A. — If I recollect 
aright, one deed was in favor of Mr. William Parker of Barnstable, a 
man with whom I was acquainted ; and the other two were delivered 


1882.] 


SENATE —No. 150. 


405 


to me by Mr. Crocker, with the order to deliver one to Cyrus Baker 
and the other to J. W. Johnson, I think his name is, when they came 
to the village. Both were absent at the time. I think Capt. Cyrus 
Baker was at sea, and Mr. Johnson also. If my memory serves me 
right, I delivered the deeds to Cyrus W. Baker and Mr. Johnson. 
Mr. Bradford L. Crocker delivered the other deed to Mr. Parker. 

Q • — State if anybod}^ took charge of this real estate of Mrs. Kel¬ 
ley after her death. A. — Bradford L. Crocker. 

Q.—How did he take charge of it? A. —Well, next day after 
the deceased was buried, he and his wife assumed the executorship, 
and went into the house and disposed of all the effects that were in 
the house. 

Q -— Was that before the will was proved? A. —Yes, sir; next 
day after she was buried. 

Q. —Was there any money found in the house? A. —Yes, sir. 

Q . — How much? A. — Well, sir, I counted two hundred dollars 
in bank-bills; and then there was some specie — I think it.was in a 
bag — which Mr. Crocker counted. I asked him how much there 
was, and he made me no reply. 

Mr. Wadleigh. I should like to know the object of this testimony. 

Q. (By Mr. Burdett.) —What became of the two hundred dollars, 
or over? A. —Mr. Crocker— 

Mr. Wadleigh objected, and the question was excluded. 

Q. (B}^ Mr. Burdett.) — Will you state now, Mr. Nye, in what 
way Mr. Crocker had charge of the real estate of Betsey Kelley ? 

Witness. Is that question asked me? 

Q. —Yes, sir. A. —He went into the house and distributed what¬ 
ever there was in the house to whom he saw fit. 

Q. — Did he have any thing more than that to do with the real 
estate? A. — No : at that time, no, sir. 

Q. — Did he at any time have any thing to do with the collection 
of the rents or management of the real estate? A. — I think not. 

Q. — Who did attend to that business? A. — Chiefly n^self, I 
think. 

Q. —Now, then, there was a barn, wasn’t there, on the homestead 
of Mrs. Kelley? A. — Yes, sir; what purported to be a barn, — a 
mere shell. 

Q. — Was it moved by you ? A. — Yes, sir. 

Q. — Did you have the consent of anybody to move it? A. — Yes, 
sir. 

Q. — Who ? A. — Judge Day. 

Q. — Did you have any thing to do with the Evangelical Society 
with regard to the matter? A. — Yes, sir : there were two buildings 
on the premises, one of which was put up by Mrs. Kelley herself, and 


406 


HEARING —JOSEPH M. DAY. 


[March, 


the society didn’t pay for it; and after some time, after he vacated 
the house, of course, it was of no use, and by vote of the societ} 7 I 
moved it off. 

Q. — The Evangelical Society of Hyannis being owners of that 
real estate under the will? A. — Yes, sir. 

Q. — And by their consent 3’ou moved the barn off ? A. — Yes, 
sir: I moved the building, and some time afterwards I moved off the 
barn.. 

Q. — And was all of that done with the consent of the Evangelical 
Society? A. —Yes, sir. 

Q. — Did you pay for it? A. — Paid for the barn ; yes, sir. 

Q. — You paid the appraised value of it, didn’t 3’ou? A. —Yes, 
sir. 

Q. — Did 3 t ou know about the institution of writs of entr3 T for land 
left b3 7 Mrs. Ivelle3 T ? A. — l r es, sir. 

Q. — When 3’ou spoke to Judge Da3 7 about moving that barn, did 
he sa3* any thing to 3 7 ou about getting the consent of the Evangelical 
Societ3 7 ? and, if so, what did he sa3 7 ? A. — No, sir; not that I 
recollect of. 

Q. — But you did get their consent, did 3’ou? A. — Yes, sir; 
previous^’, as I understand. 

Q. —- And after you got the consent, he told you 3’ou had the right 
to move it off, did he? A. — I went over to Barnstable — 

Mr. Wadleigh. Brother Burdett, if 3 7 ou will make less leading 
questions. 

Witness. I went over to Barnstable and told Judge Day, because, 
of course, I didn’t intend to move the barn off without an3 T bod3’’s 
authorit3 r , without consulting him ; and I said to him that there was a 
barn in a dilapidated state on the estate, the sills were all rotten, the 
roof leaked, and it laid there a mere shell, covered with boards, and a 
few shingles on it, and really not worth the twenty-five dollars that I 
paid for it. I said I had no barn, and I would like to move it off and 
fix it up for m3’ own use, if it was proper, but I would not like to do any 
thing involving an3 7 trouble, but it was worth little an3 T wa3 r . In a 
short time it would have tumbled down at an3’ rate, and he wanted to 
know if I could not fix it up where it was. I didn’t w r ant to do that: 
it would be inconvenient to go on other premises and put my horse 
and carriage up. Then he thought a moment, and said, u Move it 
off, move it off; ” replying twice. Of course I felt perfectly safe, and 
then contracted with a carpenter to move it off and repair it for me. 

Q. (By Mr. Thompson.) —Whether, or not, there was a misunder¬ 
standing between 3*011 and Mr. Bradford L. Crocker in the settlement 
of the estate? whether you agreed? A. — We did not agree, sir. 

Q. — And whether in what you did, you did on your own account, 


1882.] 


SENATE —No. 150. 


407 


as your own matter, and whether what he did, he did of his own 
motion? A .— What I done, I proposed to do as near according 
to the will as I could possibly do ; and he objected to my proceeding 
according to the will. 

Q • — He did? A. —Yes, sir; and that is the only trouble be¬ 
tween Mr. Crocker and me, and the only trouble I know of. 

Q . —Didn’t you state to Judge Da}’ at the time you w r ent to him 
with regard to moving the barn, that the Evangelical Society was 
willing? 

Mr. Wadleigh objected to the question as leading. 

Witness. I don’t remember. 

Q. (By Mr. Burdett.) —You say you had their consent? A .— 
I never said I hadn’t their consent. 

Q. — You said you had their consent before? A. — Yes, sir. 

Q. (By Mr. Thompson.)— Now, sir, you say you don’t know’of 
his ever collecting any rent from the real estate, Crocker? A. — I 
don’t know that he did. 

Q. —Did he ever render an account to you that he ever collected 
any rent? A. — No, sir ; not to my recollection. 

Q. (By Mr. Wadleigh.) — Had the Evangelical Society given their 
consent at the time you went to Judge Day? A. —Yes, sir : I didn’t 
do any thing contrary to their consent in relation to the real estate of 
Miss Betsey Kelley. 

Q. — Wasn’t anybody else interested in that except the Evangelical 
Society? A. — No, sir ; not that I know of. 

Q. — Wasn’t the Home Missionary Society to have the property in 
certain contingencies? A. —They were ; but at that time they hadn’t 
any thing to do with it. 

Q. — But they were to have it in case certain things were not done? 
A. — Oh, yes, sir ! 

Q. — Did you ever take any steps to get their consent? A. — Yes, 
sir: I corresponded with H. B. Hooker, secretary of the society, in 
regard to it. 

Q. —Did you consult Judge Day in relation to moving the barn? 
A. — No, sir; not the barn before that, but the other. The final 
reply Mr. Hooker made to me — I used to go to him for advice in the 
matter, and the final reply in regard to the matter was, “I don’t 
know as we have any thing to do with it. The matter is in your own 
hands, and you proceed as you see fit.” 

Q. — In what year w T as that? A. — I don’t know what year. 

Q. — Was that before you went to Judge Day, or afterwards? 
A. — I don’t know ; but I presume it was before, because I went to 
him several times, and because in the early stages of my administra¬ 
tion I sought counsel from the Home Missionary Society, and from 


408 


HEARING — JOSEPH M. DAY. [March, 


Mr. Day, and from others. Of course, as Mr. Crocker and I didn’t 
agree, I could not trust arty to his counsel or co-operation. 

Q. — Did you take counsel of any one as executor? A. — Yes, sir. 

Q. — Whom ? A. — Mr. Cogswell. 

Q. — What Mr. Cogswell? A. — J. B. D. Cogswell. 

Q. —Anybody else? A. —No : I think not, materially. 

Q. — How much was his bill ? A. — Ten dollars. 

Q. —Mr. Cogswell’s bill? A. —Yes, sir. 

Q. — He was the only lawyer you consulted, wasn’t he? A .— 
Yes, sir : I think so. 

Q. —Are you positive his bill was ten dollars? A. —Yes, sir. 

Q. — It was not more? A. — No, sir, it wasn’t more. 

Q. — Are you certain ? A. — Yes, sir. 

Q. —And you didn’t consult any other counsel? Did you consult 
any one else except Judge Day? A. — I had some little business 
with Mr. Harriman. He measured the farm, but I didn’t pay him 
any money ; and I don’t know as I really consulted him as executor. 
But I didn’t pay him an}’ money : that I recollect. 

Q. —What did you consult Mr. Cogswell about? A. —Well, in 
regard to — I don’t know as I could really say what I did consult 
him about in particular. 

Q. —Did he give you a bill? A. — No, I don’t think he gave me 
any bill; but I know I got some ideas from him, and paid him ten 
dollars. 

Q. —Did you carry that into Judge Day, in settlement? A. —I 
carried it into my account. 

Q. —Are you sure of that? A. —Yes, sir. 

Q. — Are you sure you didn’t pay any other counsel any thing? 
A. — No, sir; not for advice. I paid Mr. Higgins two dollars for 
making out some document, — I don’t remember what. At any 
rate, I paid him two dollars for some writing he done; and he says, 
“ I suppose you will make charge of this to the estate? ” 

Q. — What was that, — making a deed? A. — I think it was, but 
I am not positive. 

Q. (By Mr. Wadleigh.)— Is that account here? A. — It was 
some writing he done for me for which I paid him two dollars. 

Q. — Did you have any counsel from anybody else? A. — I don’t 
think I did. 

Q. — Did you talk with Judge Day more than once? A. — Yes, 
sir: I talked with him, but not in relation to this matter more than 
once. 

Q. —You talked with him about other matters in relation to the 
estate. He advised you, didn’t he? A. —Yes, sir. 

Q. — About your duties as executor? A. — He gave me such in¬ 
formation as I asked for, I think. 



1882.] 


SENATE —N6. 150. 


409 


Q • — Did he do any thing for you except what you stated? A. — 
Mr. Day? 

Q . — Yes. A. —No, sir ; not that I know of. 

Q . — What was it you consulted him about? A .—I don’t re¬ 
member any particular thing, —something in relation to my duties as 
executor ; no particular thing, as I recollect about. 

Q . —Did you go to Judge Day in order to find out how the thing 
could be settled up, or anything of that kind? A .—Whether I 
went to him in relation to the estate, I don’t remember, nor any 
question I asked him. 

Q. — Well, now, did you consult him in anyway in that whole 
business except as executor of the estate? A. —No, sir. 

Q. — Then, whatever consultation you had with him, and whatever 
advice he gave you, it was consultation with him as executor; the 
advice was given as executor, wasn’t it? A. —Well, I so under¬ 
stood it. 

Q. —Now, Mr. Higgins made two deeds for you, didn’t he? A. 
— I can’t say whether it was one or two: I know he did a little writ¬ 
ing for me. 

Q — Here it is : “Paid Mr. Higgins $ 2 ,”—that was added after 
this was made? A. — According to my recollection, sir. 

Q. —Now, you are positively certain you never paid any thing for 
legal counsel, except this ten dollars, as executor? A. —Yes, sir: 
I don’t know as I ever paid any thing to anybody. One thing I am 
certain about, I never paid Judge Day a single farthing. 

Q. — Did you employ anybody except Mr. Cogswell as counsel? 
A. — I don’t remember as I did, as legal counsel. 

Q. —And you never paid an}’ thing for legal counsel, except that 
ten dollars? A. —That is all I ever paid, to my recollection. 

Q. — Supposing you charged fifteen dollars, paid to legal counsel, 
would you say Judge Day didn’t get any of that? A. — Yes, sir. 

Q. —Supposing you charged fifteen dollars, instead of ten dollars, 
where is the other five dollars ? 

The Chairman. Is there fifteen dollars besides that? 

Mr. Wadleigh. Certainly. 

A. — I can’t tell you where the five dollars went to. 

Q. — You don’t remember any thing about that? Did Judge Day 
help you to make up this account? A. —No, sir. 

Q. —You made it up yourself ? A. —Yes, sir. 

Q. (By Mr. Thayer.) —Did you make that up with Mr. Crocker? 
A. — I don’t remember that I did : I don’t think I did. 

Q. (By Mr. Hill.) —Is there any charge there to Cogswell, ten 
dollars? A. —No, sir. 

Q. — It is “Legal advice, $ 10 ,” and “Mr. Higgins $2 for 


410 


HEARING —JOSEPH M. DAY. [March, 


deed”? A.—I can’t sa} r whether I paid Mr. King anything, or 
not. I am not certain about that: I may have paid him five dollars. 

Q. (By Mr. Wadleigh.) —You don’t remember any thing about 
that? A. — I do not; but I have a vague idea that I did pay some¬ 
body five dollars. 

Q. — You didn’t think of it until I called } r our attention to it? 
A. — No, sir, I did not: I don’t know to whom I paid it. 

Q .—But } 7 ou think it may be Mr. King? A. —It possibly may 
be : I can’t say positively. 

Q. — How much did 3*011 pay Mr. King? A. —I don’t know as I 
paid him any thing: I can’t say positive^ that I did. 

Q. — What King was it? A. — The lawyer King, — I don’t know 
his first name. 

Q. —What is his given name? A. —I can’t say. 

Q. — Is it George A. ? A. — I think it is. He was living at Barn¬ 
stable : he had something to do with the estate. 

Q. —Didn’t he make out the bill to you? A — I shouldn’t wonder 
if he did. 

Q. —Don’t you think he did? A. —I can’t say he did, because I 
have no recollection about it. 

Q. — Well, there was an item in that account, wasn’t there, that 
referred to his bill? A. —I can’t say but what there was. 

Q. — Wasn’t there quite a large item? A. —Oh ! in his account? 

Q. —Yes. A. — Oh ! there was, — }'es, sir, — a hundred dollars, if 
I recollect. 

Q. — Where is his bill? A. — I don’t know. 

Q. — Did 3*011 carry that to the judge of probate? A. — I presume 
I did. 

Q .—Did 3*011 cany any vouchers for these bills when 3 T ou settled 
this account? A .—At one time? 

Q .—Yes, when you settled this account. When 3*ou presented 
this account, did you have vouchers to back it up? A, — Well, I 
can’t sa3 T as to that: m3* recollection don’t serve me about that — 
Oh ! vouchers ? 

Q. — Receipts, bills? A. — Oh, 3*es ! I presume I did; I don’t 
know ; I can’t sa3 7 . I haven’t got them in m3 7 possession. 

Q. —Did you leave them at the probate office? A.—I think I 
turned my receipts over to the Home Missionary Societ3 T , w r hen the 
property was all disposed of. 

Q .—Here is an item: “Geo. A. King’s bill, $ 77 .” It is very 
likely— A. —I didn’t pay that. I don’t know, — that is to sa3*, I 
presume I had a voucher for it at the time, but I haven’t it in my 
possession. 

Q .—That was his bill, wasn’t it? A.—I presume so. I don’t 
dispute the bill, as to that matter. 


1882.] 


SENATE —No. 150. 


411 


Q. (By Mr. Hill.) —Is that the only account filed in the probate 
court? A. —I don’t know, sir. I don’t know what Mr. Crocker has 
done. 

Q. (By Mr. Wadleigh.) —Didn’t 3 r ou file, previous to that, 
another account? A. — Not to my recollection. I don’t know that 
I did. 

[The register of the probate court was summoned, and testified that 
two accounts were filed in the case.] 

Q. (By Mr. Thayer.) — I would like to ask } t ou a question or two. 
I see here is George Marston’s bill, right under George A. King’s 
bill: were those bills that the estate was owing? or were those bills 
which } T ou as an executor, in Compaq 7 with Mr. Crocker, contracted? 
A. — We contracted them bj^ lawsuits. That is to sa}q there were 
parties who came in with bills against the estate, which we tried to 
defend ; and that is why those parties appear there. 

Q. — These bills of George Marston and George A. King were for 
services rendered )’ou as executors, were they? A. — Yes, sir. 

Q. — I understood Mr. Wadleigh to ask you if you had paid any 
thing more than the ten dollars which } t ou paid to Mr. Cogswell. A. 
— Not on m3 7 own personal, individual account. This was a co-oper¬ 
ative thing, and the other account I spoke of was personal. 

Q. — What }’OU paid that man was 3^0ur own personal matter, and 
this was where you and he were combined? A. — In relation to the 
estate. I mean to sa} 7 that we co-operated in these charges, and the 
other I sought counsel on my own hook. 

Q. —Now, I want to see if I understand 3 7 ou. As I understand, 
when Betsey Kelley died, 3 T ou had upon some real estate of hers a 
shed that 3’ou had put on there? A. — When she died, the shed I 
spoke of was there. Afterwards I put up a building myself — 

Q. —No, no! When she died, you say, or a little while after¬ 
wards, 3’ou removed the shed, didn’t 3'ou? A. —No, sir. 

Q. —Am I mistaken about that? A. —Yes, sir. 

Q. —You didn’t move off the shed until after she died? A. — I 
will tell 3*011 what I did remove — 

Q. —Just answer my question, please. Did you move a shed off 
from this Betsey Kelley’s estate after she died? A. —I moved off a 
building called a barn. 

Q. —Haven’t 3’ou named it here to-day as a shed? A. —I said 
it was a mere shed. 

Q. —Then, the building which 3*ou spoke of you intend to say 
might be a barn, or might be a shed? It was an old, dilapidated 
building? A. — It was an old, dilapidated building: yes, sir. It 
was pretty well rotted — 

Q. —Now, how long after you and Mr. Crocker were appointed 


412 


HEARING — JOSEPH M. DAY. 


[March, 


executors of the estate was it that you moved that off ? A. — She 
died in 1868 , if I recollect right. I moved this off, I think, in the 
year 1870 , or ’ 71 , — I think it was ’ 70 . 

Q. — Some two } T ears, you think, after you were appointed? A. —• 
Yes, sir. 

Q. — And you didn’t move it off until after } t ou had purchased it 
at the appraised value of it? A. —No, sir. 

Q. — Did you ever state to Mr. Crocker that } 7 ou claimed that barn 
because you owned a part of the land on which the barn stood ? A. 
— No, sir. 

Q. — Did you ever tell Mr. Crocker that you had purchased and 
paid for that barn the appraised value of it, and that by reason of so 
doing you moved it off ? A. —No, sir. 

Q. — Did } t ou ever say anything to Mr. Crocker how you hap¬ 
pened to move it off in an3 7 wa3 r ? A. —How I happened to? 

Q. —Yes. A. —Yes, sir. 

Q. — What did 3 7 ou tell him? A. — He asked me how I came to 
move the barn off. I told him I did it b3 7 consent of Judge Day and 
of the societ3 T ; and he said that was false, that Judge Day told him 
he never said so. 

Q. — Did 3 7 ou tell Mr. Crocker that 3 T ou had paid for the barn the 
amount of the appraised value in that conversation with him or any 
other? A .—No, sir: he never asked me the question whether I 
paid an3’ thing for it or not. He merely asked me the question why 
I came to move it off. 

Q. — And 3’ou told him 3 T ou did it with the consent of Judge Day 
and the Evangelical Societ3 7 ? A. —Yes, sir. 

Q. —That is the answer 3 r ou gave to him? You didn’t tell him 
that you moved it off because 3 r ou owned a part of the land on which 
the barn stood, and claimed it b3' reason of owning that land? A. — 
No, sir; I made no claims to it until I got it on to m3 T own premises: 
of course I claim it now, but I paid for it. 

Q. (B3 7 Mr. Hill.) —But it was appraised, and 3 t ou paid twent3 r - 
five dollars for it? A .—Yes, sir, — rendered into the account of 
the estate twent3 T -five dollars. 

Q. (By Mr. Wadleigh.) —You took it at the appraisal? A. — 
Yes, sir. 

Q .—Did it stand on your land? A. —It does, — did it? No, 
sir. 

Q. — It didn’t stand on an3 7 land that 3*011 claimed, any part of it? 
A. — Well, that would depend on the point measured from. 

Q‘ — Did it stand on an3 r land that you claimed, any part of it? 
A. —Well, I can’t sa3 7 that it did. 

Q •—Do 3’ou sa3 7 it did not? Didn’t 3 T ou claim that it stood on 
your land, a small piece of it? A. — I never moved the barn on any — 


1882.] 


SENATE —No. 150. 


413 


Q • — I am not asking what you did: I am asking } r ou if you 
claimed that it stood, a small portion of it, on land which 3’ou owned 
or had some claim to. A. —Well, I didn’t own the land — 

Q . — I ask you whether, or not, that barn stood, any part of it, on 
land which you claimed to own, whether you owned it or not? A. —■ 
Well, sir — 

Q — Answer me, } r es or no, and then explain. A. — I prefer to 
answer 3’ou just as — 

Q. —You answer me 3 r es or no, and then explain just as much as 
3 T ou wish. [Witness paused.] Did 3*011 or not claim that that barn, 
a portion of it, stood on land which 3 t ou owned or claimed to own? 
A. — Well, what I did claim to own at the time. 

Q. — You claimed at the time to own a small portion of the land 
on which that barn stood? A. — Yes. 

Q. — Now you say that Mr. Crocker asked 3*011 what 3’our grounds 
were for moving the barn, why you moved it? A. —Yes, sir. 

Q. —Didn’t 3*011 state to him the real reasons why you moved it? 
A. — The reasons I have given I stated to him. I stated the real 
reasons why I moved it. 

Q. — You claimed a part of the land it stood on, didn’t 3 t ou ? You 
took it at the appraisal, didn’t 3’ou? A. — Yes, sir: I didn’t claim 
that the barn really stood — that is, as far as that is concerned, that 
is a disputed point whether it stood on that land or not. 

Q. — You claimed that it did? A. — No, I can’t sa3 T that I really 
claimed, that is, to take the point that others took as to that matter. 

Q. — Now, taking the point that 3 r ou took, did that barn stand on 
land which you claimed to own, any part of it? A. — I made no 
claims to the barn whatever on that ground. 

Q. — Did you claim that that barn, or a part of it, stood on the 
land that 3^011 owned? Just answer me that, yes or no. A. —Do I 
claim it? 

Q. — Didn’t you, then? A. —Oh ! I can’t say I did : others did. 

Mr. Thompson. That isn’t the question. If he claimed it of Mr. 
Crocker, that is one thing: if he claimed it outside in the countiy, 
that is a different matter. If he means that he made such claim be¬ 
fore Mr. Crocker, I submit it is a competent inquiry ; and I submit 
that it ought to be put so that it shall refer to him, and not be capa¬ 
ble of misconstruction. 

Mr. Wadleigii. What we say is this: Mr. Crocker says that 
when he asked Mr. N3’e about the barn, he told him that he took it at 
the appraisal, and that he owned a part of the land on which the 
barn stood. 

Mr. Thayer. He didn’t mean that Mr. Nye said he took it at the 
appraisal. 


414 


HEARING — JOSEPH M. DAY. [March, 


Mr. Wadleigh. I don’t know. He said that Mr. Nye claimed to 
own a part of the land the barn stood on. 

Mr. Thayer. He said he claimed the barn because he owned a 
part of the land on which it stood, and took it for that reason and no 
other, so far as he knew. 

Witness. That is not correct, sir. 

Q. —But it is correct that you claimed the land,—part of it? 
A. — Whether I had a title to the land or not is a question. If you 
want to know — 

Q. — I don’t want to know any thing about it. I just ask you 
here and now whether you then claimed that }Y)u owned a part of the 
land that that barn stood on? Now, just answer me, yes or no. 
A. —Well, I can answer — I want to explain the matter to } T ou. 

Q. —No, I don’t want } t ou to. [Witness paused.] 

The Chairman. That is a simple question. No simpler question 
could be put to a man than that. A. —I never made any claim to 
the barn on the ground of owning the land. 

Mr. Thompson. I suppose his claim was so weak that he didn’t 
hardly want to give it the dignity of a claim! 

The Chairman. I think the witness should have that question put 
to him once more, and then answer it clearly.. 

Q. — Did you then claim a part of the land on which that barn 
stood? A. — I made no claim to Mr. Crocker of the land whatever. 
That was no ground of m3 7 taking the barn: I had no title to the barn 
whatever. 

Q. —Did } r ou then claim a part of the land on which the barn then 
stood ? 

Mr. Thompson. Who did he claim it of? 

Mr. Wadleigh. No matter. Let him answer my question. 

A. [After some hesitation.] —I don’t think that is a fair question 
to ask me. You may laugh, gentlemen, but I want to give you to 
understand just how the thing stands. 

Q . — Did you then claim a part of the land on which that barn 
stood? A. — At the time the barn was on it? 

Q . — Wait a moment. Did you then claim a part of the land on 
which the barn stood ? 

Mr. Thompson. What do you mean by “then”? He asks you 
if 3 T ou mean the time when the barn was on it. 

Mr. Wadleigh. When the barn was on it. A. — I had no claim 
to the land then. I made no claim to the land when the barn was on 
it, according to the best of nry recollection. 

Mr. Thayer. Now you can go on to explain. 

Witness. According to the best of my recollection, after the barn 
was moved off, the estate was indebted to me ; and I wanted to raise 


1882.] 


SENATE —No. 150. 


415 


some money on the estate, and I then went to Judge Day, asking how 
I should raise this money. There were these two lots — or rather, 
one lot — that they did claim before the barn was moved off. It ran 
over, one corner of it, a little over the line, and I asked him how I 
should raise the mone}^; and, as I understood afterwards, after these 
deeds were found in the house, it was illegally transferred. I wanted 
to have the whole matter done legally; and therefore I contested 
against the deeds going into the hands of the parties to whom they 
were made, as they were found in the house, as I understood after¬ 
wards. And so I tried to get the deeds back again, but they would 
not give them up ; and I asked Judge Day what I should do in order 
to raise some mone} T . He advised me — or rather, gave me his coun¬ 
sel to this effect — to sell those lots for what they would fetch at pub¬ 
lic auction, and thereby raise some money. And I did. I sold those 
lots at public auction, but they reverted back again to the parties ; 
and now I recollect that the barn was moved off before I sold those 
lots. 

Q .— You say Judge Day advised you to sell those lots? A .— 

•\r • 

les, sir. 

Q. — And 3’ou proceeded on that advice to sell them at public 
auction? A. —Yes, sir. 

Q .—As executor? Yes, sir. 

Q .— And the advice was given to }’ou as executor? A. —Yes, 
sir. 

Q. —Now, did the parties to whom }^ou sold those lots hold them? 
A. —They held the deeds of them. 

Q .— I mean, did they hold the land? A. —That is a question 
whether the} T did or not. 

Q. — Were those lots that you sold a part of the land that Judge 
Day brought these writs to recover for the Evangelical Society? A. 
— Yes, sir. 

Q. — And he got them all back, didn’t he, after he advised you to 
sell them at auction? A. — I don’t know about that. 

Mr. Wadleigh. Now, Mr. Nye, let us see whether I am right 
or not. You say that you sold these lots at auction? 

A. —Yes, sir. 

Q. — And deeds were given by you ? A. — Yes, sir. 

Q. —And that was in accordance with Judge Day’s advice to you? 
A. —Yes, sir. 

Q. _Now, who bought the lots ? A. — One Mr. Clark, I think. 

Q, _Now, I will ask you again, — I don’t know what the fact is, 

and don’t pretend to know any thing about it, — did Judge Day bring 
suits for the Evangelical Society to recover those lots or not,—the 
same lots that you sold, I mean? A. —Well, I don’t know as to 


416 


HEARING —JOSEPH M. DAY. [March, 


how that matter stands : I am not clear in my mind about it. I know 
one thing, if I understand the thing aright, the lots reverted to Cyrus 
Baker again, and all came back. One lot I bought m} T self, and paid 
the money for it. 

Q. —That is one of the lots 3*011 sold? A. —Yes, sir. 

Q. — Was ai^ suit brought against 3*011 b3* Judge Day? A. — I 
suppose there was. 

Q. — On account of that very lot 3*011 sold? A. — I have no par¬ 
ticular recollection about that. I own the lot still, and have a build¬ 
ing on it, — have alwa3 T s occupied it an3 r wa3 T . 

Q. —Did he bring a suit against 3*ou for that very lot, or not? A. 
— I have — 

Q. — Listen to this description [from writ of Evangelical Society 
against Hiram Nye] : — 

“ . . . A piece or parcel of land situated in Hyannis, a village in the town 
of said Barnstable, bounded as follows: beginning at the north-west corner of 
land of said Nye on School Street, so called, tlience running northerly by said 
street five rods, thence westerly by land owned now or late by Cyrus A. Baker, 
until it comes to land now or late of Rowland S. Hallett, thence northerly in said 
Hallett’s range five rods to land now or late of said Nye, thence westerly in 
said Nye’s land to the first-named bound.” 

Was that one of the lots 3*011 sold at auction? A. — Yes, sir, it 
was. 

Q. — And judgment was recovered against 3*ou for this? A .— 
Yes, sir : I presume it was ; I don’t recollect. 

Q. — And 3*011 sold it in accordance with the advice that Judge 
Day gave 3*011? A. — Yes, sir. 

Q. —Then he afterwards sued 3*011 for it? Do you understand he 
brought this suit? A. — Well, I have no recollection of it, I am 
sure : I presume he did. 

The Chairman. Doesn’t the writ speak for itself, Mr. Wadleigh? 

Mr. Wadleigii. Yes, I suppose it does. 

Q. — Do you know the handwriting of that? A. — I don’t think 
I do. 

Mr. Burdett. We put the writs in ourselves. 

Q. — Did you consult Judge Day on any other occasion, to get 
advice from him? A. — I don’t remember that I did. 

Q. — Did 3*ou pay any thing on account of this suit? A. — No, 
sir : not to n^ recollection. 

Q> — Who settled it? A. — I don’t-remember any thing at all 
about that suit. 

Q. (By Mr. Hill.) —To whom did 3*011 say 3*011 paid ten dollars? 
A. —Mr. Cogswell, sir, —John B. D. Cogswell. 

Q • —Didn’t you say to me, in answer to an inquiry that I made, 



1882.] 


SENATE —No. 150. 


417 


that you did not know whether Mr. Crocker had ;nade an} r return or 
account to the probate court or not ? A. — He made a return with 
me. 

Q • — With } T ou? A. —I suppose so : yes, sir. 

Q -—Did you sign any report or account? A. — I don’t remem¬ 
ber : I presume so. 

Q • — Do you know of any other returns or accounts which were 
made to the probate court besides those two? [First and second ac¬ 
counts in Betsey Kelley’s estate.] A. —This is signed only by B. L. 
Crocker ; I don’t know that I know an} 7- thing about that. 

Q' — The other one is signed only by B. L. Crocker, isn’t it? A. 
— Well, I don’t understand why my name isn’t here, I am sure. 

Q‘ — It isn’t there, is it? A. —No, sir : I don’t see it. 

Q. — I want to ask you in whose handwriting is that account made 
up? A. — I don’t know the handwriting. 

Q • —Is it yours? A. —No, sir : not my handwriting. 

Q • —That was submitted to you before it was filed? A. —I can’t 
say whether it was, or not. 

Q' —Don’t you know whether it was, or not? A. — I don’t re¬ 
member : my signature ought to be there if it was. 

Q • — I should think so. Now, what I want to know is, whether 
you collected all the rents of this estate? A. — Yes, sir: I suppose 
I did: I collected all I could, at any rate. 

Q. — Have you any doubt but that is a correct account of all the 
property there was there? A. —I shouldn’t express any thing about 
that until I read it over, sir. 

Q. — Now, you consulted with Mr. Cogswell, as I understood you 
to say, to whom you paid ten dollars ; with Mr. Harriman, to whom 
you paid nothing ; and with Judge Day. Is that all? A. —And Mr. 
King. 

Q. — You also said that vouchers were returned to the court when 
this account was allowed? A. — I returned m3’ vouchers to the 
Home Missionary Societj 7 at the time the property was sold. 

Q. —Now, I observe here, under 1868 , “Counsel fees, $10.” 
That has not been spoken of. In 1872 , which has been referred to, 
there is another charge of fifteen dollars. Now, do 3’ou know to 
whom those two sums were paid? You have accounted for ten dol¬ 
lars. 

Mr. Wadleigh. One is in Mr. Crocker’s account, the ten dol¬ 
lars. In his account the item is fifteen dollars for legal counsel. 

Mr. Hill. I wanted to understand that, for I didn’t get from the 
witness what he meant. 

Q. —You have no explanation, be}’ond this, of those two items? 
A. — No, sir. I presume I paid five dollars to Mr. King, although 
I have no recollection about it. 


418 


HEARING —JOSEPH M. DAY. [March, 


Q. (B} t Mr. Crowley.) —Was the personal estate sufficient to 
pay the debts? A. — No, sir : I think not, — no, sir, it was not, to 
pay the debts and the lawsuits and all. 

Q. —The personal estate was not sufficient to pay the debts, and 
3*ou asked the advice of the judge of probate what to do, to raise 
money to pay the debts, — is that it? A. —Yes, sir. 

Q. —And he told you to sell the real estate, — was that it? A. — 
He told me to sell those lots : yes, sir. 

Q. —Did } T ou pajr him for it? A. —No, sir. 

Q. (By a member of the Committee.) — By what authority did } t ou 
sell off the real estate? A. — I just stated my authority. 

Q. — You made application for that purpose, and the judge granted 
3^ou authority to sell that real estate, did he? A. — Yes, sir.^ 

Q. (B3' Mr. Thompson.) — You petitioned for a license to sell real 
estate, I suppose, didn’t 3 T ou? A. — According to the best of my 
recollection, I did. 

Q. —You speak about lawsuits. What lawsuits do 3 T ou refer to? 
A. —Hemy Baker brought in a bill against the estate, which we de¬ 
fended ; and finalty we emplo3 7 ed Mr. King and Mr. Marston, — I think 
both of them. 

Q. (B3 7 Mr. Wadleigh.) —Who was Hemy Baker’s counsel? 
A. —I think Mr. Marston, if I recollect right. I am not certain, 
however. 


CHARLES G. DAYIS. Sworn. 

Q. (B3 t Mr. Burdett.)—Y our full name is Charles G. Davis? 
A. — Yes, sir. 

Q. — You reside where ? A. — In Plymouth. 

Q. —How long have you resided in Plymouth ? A. —Ever since 
I was born, except about five years in Boston. 

Q. — Are 3 T ou acquainted in Barnstable? A. — I am. 

Q. — How long have you been acquainted in Barnstable and that 
section? A. —Well, almost entirely since 1856 . 

Q. —To what extent have you known the people of that town and 
section, and what have you had to do with them? A. —In 1856 
I was a delegate from that district to the Fremont National Conven¬ 
tion, and afterwards n:y business for seven 3 7 ears called me there as 
assessor. 

Q .—Assessor of what? A. —Assessor of the First Massachu¬ 
setts District internal revenue. 

Q. — Did you know one David Bursley? A. — Yes, sir. 

Q- — How long did you know' him ? A. — I have known him since 
1855 or ’56 ; but I knew nothing of him until 1863 , I think: ’63 or 
’ 64 , — somewhere along there. 


1882.] 


SENATE — No. 150. 


419 


Q • —Do you know — A. — I don’t' mean by that to sajr I didn’t 
know him, because I remember driving twenty miles with him once in 
1862 . 

Q -—Do you know Mr. David Bursley’s reputation for truth and 
veracity ? A. — I do. 

Q. — What is it? A. —Bad. 

Cross-Examination . 

Q. (B} t Mr. Wadleigh.) —What is your age? A. —I am sixty- 
one, sir. 

Q . — Where do } 7 ou reside? A. —Ptymouth. 

Q. — How far is that from Barnstable ? A. — About thirty^ miles. 

Q. —You sa} r you rode twenty miles with him once? A. —I did. 

Q. — How long ago was that? A. — Nineteen j r ears and six 
months. 

Q. — Was it on any matter of business ? A. — Yes, sir. 

Q. —What? A. — A matter of official business. 

Q .— How long were you with him at that time? A .—I think 
during one day, sir. 

Q. —When was your next business intercourse with him? A .— 
I never had any business intercourse with him. 

Q. —You live in his county? A. —No, sir. 

Q. —You don’t live in his county? A. — No, sir. 

Q .—You had much business in Barnstable County? A .—As 
assessor I had considerable : I had to go there perhaps five or six 
times a year for seven years. 

Q. — When was that seven } T ears? A. — From 1862 to ’ 69 . 

Q. — Have you had an}^ business in Barnstable County since? A, 

— Yes, sir. 

Q. — What ? A. — Law business. 

Q .—Occasionally down there at court? A. — Yes, sir, — tried 
two or three cases there. 

Q. — Two or three since 1869 ? A. — Yes, sir. I have often met 
him otherwise, out of the county as well as in. 

Q. — You have met him out of the county as well as in? A. — 

— Yes, sir. 

Q. — Now, that is the extent of your acquaintance with him ? A. 

_I don’t know. What I said is not the extent of my acquaintance, 

because I have met him and heard of him a great many times, more 
than I could enumerate. 

Q. — Who was it that ever questioned his veracity except Judge 
Day or some of his crowd? A. —Well, it was so common a thing 
that I should not think of remembering names. I have not heard it 
questioned : I have heard it spoken of as “ one of Bursley’s lies,” — 
not as a matter of inquiry, but as a matter of fact. 


420 


HEARING —JOSEPH M. DAY. [March, 


Q. — Who was it that said that which 3’ou just repeated? A. — I 
didn’t say there was an3^body. I can’t name any particular person 
that I know of. 

Q. —Can you name any person that you ever heard say one single 
word derogatory to his character for truth and veracity? A. —Tes, 
sir. 

Q. — Who is that? A. —James Buffington. 

Q. — Who is he? A. — He was a member of Congress from that 
district. 

Q. — What was the subject-matter of conversation at the time? 
A. — In 1868 — ■ • 

Q. — I asked 3 t ou what the subject-matter was. 

Mr. Thompson. He was commencing to answer it. 

A. —The subject-matter was lies that Mr. Bursiey told about what 
Mr. Buffington had said to him. 

Q. — Oh ! some politics? A. — I don’t call it politics. 

Q. — Don’t 3 T ou? Well, it was some political matter, wasn’t it? 

Witness. I have generalty been of the same political part3 T with 
him. 

Q. — How long ago? A. — Until within about eight 3 r ears. 

Q. — For eight years you have not? A. — I have nothing against 
him personalty. 

Q. —Now, this talk with Buffington, was it about Swift? A .—• 
No, sir. 

Q. — Any thing about that custom-house down there? A. — No, 
sir. 

Q .—What was it about, — some political matter? A .—Some 
persons might call it a political matter: I do not. 

Q. — What was it? A. — In 1868 some of m3’ assistant assessors 
wrote to me that Mr. Bursiey had been to them and represented that 
he was authorized b3 T Mr. Buffington to say that if the3’ did not favor 
his nomination for Congress, if he was elected they would be re¬ 
moved ; and that of course made it necessaiy that I should protect 
my assistants, some of them. I inquired of Mr. Buffington about it, 
and he said it was false, that it wasn’t true. 

Q. — Now we understand it. Mr. Bursiey was working for Mr. 
Buffington ? A. — I suppose he was, — not of my own knowledge. 

Q. — He was one of his friends? A. — I don’t know whether he 
was or not. 

Q. — He was working for him, at any rate, and he intimated to 
some assessors there that they ought to work for him, and the3 T were 
in danger of being turned out if they did not? A. —No, he didn’t 
intimate it: he stated it very strongly. 

Q. — Do you know any thing about it, except by hearsay? A. — 
Only from their representations to me. 


1882.] 


SENATE —No. 150. 


421 


Q‘ — Then, you know nothing about it, except by hearsa} T , at all? 
You went to Mr. Buffington and said that Mr. Bursley said that he 
would turn men out who would not support him, and he said that it 
was not true ? A. — Yes, sir. 

Q '—That is all you know about it? A. —No, sir, that is not 
all I know about it; but I don’t know any thing except by hearsay 
about it. 

Q• — You don’t know any thing except by hearsay at all? A .— 
Of course not. 

Q • —What Mr. Buffington said about him? A .—You asked me 
if I could name any one person, and I have. 

Q •—Bet us have another. A .—I have heard the present attor- 
ney-general say — 

Q. (By the Chairman.) — Was that all that } r ou heard from Mr. 
Buffington in regard to his reputation, what you have stated now, — 
was that the whole of it? A .—I think he said he was “a d — d 
liar,” or something of that kind, — “one of Bursley’s lies,” or 
something of that kind : I could not give 3011 his precise words. 

Q • — That is the only time }mu heard Mr. Buffington say any 
thing about it? A. —All that I know any thing about personalty. 

Q. (By Mr. Wadleigh.)— But the only evidence that you had 
that Mr. Bursley ever said any such thing at all, was that somebody 
told } r ou so? A. — Certainty: that was the way I stated at the 
outset. 

Q. —And Mr. Buffington’s remark was based upon what you told 
him ? A. — Certainty. 

Q .—And he said if that was so, it was one of his lies? A .— 

Yes. 

Q. —Now, did }’ou ever hear an3 T bod3 r question his truth and Vern¬ 
on in any business matter? — I don’t want 3 T our political scrambles 
down there brought in. A. — I have not, no, sir. 

Mr. Thompson. That is not admissible, — any business matter : 
3 r ou must understand that. 

Q. —Did you ever hear an3’bod3 r say any thing about his truth and 
veracit} 7 in any way, except in regard to some of the political scram¬ 
bles down there in Barnstable County ? A. — I have heard him 
alluded to, that is all, sir, — his reputation alluded to. 

Q. —Aii3 T thing except as connected with some of these political 
scrambles? A. — Generalty, I could not say what they alluded to. 

Q. — Did 3 T ou ever, except when some political scramble was up 
for discussion? A. — Well, sir, I think I have. 

Q .—Can 3 r ou state anything about any business matter? A .— 
I can state only in connection with his reputation: that is all I can 
say about it. It has come to me at Plymouth. 


422 


HEARING —JOSEPH M. DAY. [March, 


Q. — Did you ever hear a word said against his reputation for 
truth and veracity in an}" respect, so far as any business matter was 
concerned? A. —I have never had any business relations with him, 
and I don’t think I should be likely to where there was nothing 
specific relating to business. 

Q. —You have been a practising lawyer. Do you understand, that 
w T hen I ask you a question it is your duty to answer it, and then give 
your explanation afterwards? A. —I think I do. 

Q. — Will you answer my question, and then give your explana¬ 
tion? A. — What is your question? 

Q. —My question was, whether, or not, you ever heard his reputa¬ 
tion for truth and veracity questioned in any business matter or 
relation whatever? A. — I tell you, sir, I could not say whether it 
was with regard to a matter of business, or not. When a man is 
spoken of as a liar, I don’t know whether it is in reference to 
business or politics. 

Q. — Did you ever hear him spoken of as a liar in any connection 
except in reference to some political thing or other? and, if so, what? 
A. —Well, I don’t know, Mr. Wadleigh, exactly what you mean by 
a political thing. 

Q. — Don’t you know what politics are, or haven’t you had expe¬ 
rience enough? A. —I have heard him — 

Q. — Do I need to explain to you what politics are — what a politi¬ 
cal thing is? A. —I don’t know what you mean by it. 

Q. — State according to your notion as to what it means. A. — 
No, sir: I don’t think I should confine it to political matters. 

Q. — Did you ever hear his reputation for truth and veracity 
spoken of at all except in connection with some political talk? 
A. — I think I have, sir. 

Q. —By whom, and when? A. —I could not tell you. 

Q. — Can you tell anything about it? A. —I could not, — any 
thing that you would call a strictly business matter, because I have 
not had business relations with him, excepting — 

Q. — Other people have, I suppose? A. — I think, perhaps, sir, 
this ought to be said: that he was a man of very strong passions, 
and a man who would be very apt to believe a thing that he wanted 
to believe. 

Mr. Wadleigh. Now, you testify that you cannot say that you 
have ever heard his reputation spoken of in any respect except as 
to some political matter, — his reputation for truth and veracity? 

Mr. Thompson. He has not said that at all. 

Witness. I said I could not say what it was confined to. 

Q. —What other gentlemen have you heard, except those whom 
you have named, speak of him in any way? A .—I could not give 
you the names. 


1882.] 


SENATE —No. 150. 


428 


Q. —You cannot? A. — No, sir. 

Q. — How often have you seen Judge Day for the last twenty 
3 r ears? A .—I should think, sir, part of the time once a fortnight, 
part of the time not more than once a year. 

Q . — Are you intimate with him? A. —No, sir, not intimate. 

I am acquainted with him. 

Q. — A friend of his? A. —Yes, sir : I am a friend as I am with 
a great many other lawyers whom I meet frequently. There is no 
particular intimacy. 

Q. — Do you stop at the same place where he does, in town ? 
A. — At Parker’s? No, sir. 

Q. — You have met him at Parker’s frequently? A. —Oh, yes, 
sir! 

Q. — You testified in this case last year, I think? A. —Yes, sir. 

Q. — You testified that you never knew him to drink anything? 
A. —No, sir. I did not testify that I never knew him to drink any 
thing. I testified that I did not remember of ever seeing him drink 
a glass of liquor, although I had dined and supped with him there. 

I have often spent the night there with him. 

Q .—Did you ever know him to drink any thing? A. —I don’t 
remember that I ever did. I don’t remember of his ever drinking 
any spirituous liquor. He may have drunk in my presence ; but, if he 
did, there was nothing that called it to my attention. 

Q. — When were you spoken to in regard to testifying against Mr. 
Bursley’s character? A. —I think about half-past one yesterday. 

Q .—Where? A. — Here. 

Q. —In this room? A. —Yes. 

Q. — By whom ? A. — B} r Judge Day. 

Q .—What did you come here for? A. — I came up here on — 
do you want I should tell you what I came to Boston for? 

Q. — No ; but to this room ? A. — I came up here from curiosity. 

Q .—From curiosity? A. —Partly-: I had business below with 
Gov. Long. 

Q. — And Judge Day saw you here? A. —Yes, sir. 

Q .—And he asked if you would testify against David Bursley’s 
character? A. — No, sir : I don’t think he did. 

Q. —What did he ask you? A. — Well, he spoke as if I knew 
beforehand, — as if we both knew — 

Q. —How long is it since you saw David Bursley? A. —I don’t 
think I have seen him for two or three years. 

Q .—How many times have you seen him within the last ten 
years? A. —I don’t think I have seen him within the last ten years 
more than five or six times. I think the last time I saw him to 
speak to him was at Middleborough. 


424 


HEARING —JOSEPH M. DAY. [March, 


Q. —When was that? A. — I could not tell. 

Q. — How many times have you seen him within the last fifteen 
years ? A. — I could not tell you whether it was fifty or three hun¬ 
dred. 

Q. —Have you seen him twenty times for fifteen years? A. —I 
could not tell you, really, sir. He was sheriff, I think, within fifteen 
years ; and I saw him there at court, and I might have seen him sev¬ 
eral times in one day for several days;-and then, I sometimes met 
him in Boston, — I could not tell you, any more than } t ou could, how 
many times. 

Q. — When } r ou say it is thirty miles from your place to his, do 
you mean by railroad? A. — No, sir. 

Q. — Across the country? A. —Yes, sir. 

Q. — Any public conveyance? A. —No, sir: no public convey¬ 
ance. 

Q. —How far is it b} r railroad? A. —Just about as far as it is 
from Boston. 

Q. — How far is that? — I don’t know. A. — Sixty or seventy 
miles. 

Q. — You live, then, some seventy miles from the town in w'hich 
Mr. Bursley resides ? 

Mr. Thompson. You mean by railroad, don’t you? 

Mr. Wadleigh. I mean by any public conveyance. 

A. —Yes, sir; so far as I know. We are in the same congres¬ 
sional district, and have been for twenty-five years. 

Q. — You say Mr. Bursley is a man of strong will — strong pas¬ 
sions? A. —Yes, sir. 

Q. — Now, you changed your politics, didn’t you, some years ago? 
A. — Some say it was a change. 

Q. — I know ; but in the ordinary talk of human beings, it was a 
change, wasn’t it? A. — Yes, sir. 

Q. — Now, wasn’t there a little ill-feeling between you and Mr. 
Bursley? A. — No, sir: I never had any ill-feeling towards him at 
all, — never had an} r occasion to. 

Q. —Wasn’t there a considerable degree of excitement and heat 
about your change of politics at that time? A. — Didn’t make a 
ripple, — not that I know of. I believe in some of the dogmas of 
both parties, but I don’t believe in the practises of either. 

Re-direct Examination. 

Q. (By Mr. Thompson.) — Do you know any thing with regard to 
David Bursley’s relations with Judge Day as to his temper towards 
him? A. —I don’t, within six or eight years ; but I know what it 
was before that. 


1882.] 


SENATE — No. 150. 


425 


Q • —How was it? A. —I know lie was very bitter towards him. 

Q. (By Mr. Burdett.) —That is, Burslej^ was very bitter towards 
Judge Day? A. —Yes, sir. 

Q. (By Mr. Thompson.) —Now, sir, you say that } r ou frequently 
heard his character for truth spoken of: in what way would it be 
spoken of? A. —Well, I don’t think it would be proper to go into 
details. 

Q . —In substance : I only mean in what way? A. —Well, I have 
been told, officially, that it would not do for me to trust him and 
believe in him, — in that way, and in a great many ways : I could not 
define them. 

Q. (B} r Mr. Hill.) —Mr. Bursley has been one of the leading 
men in Barnstable County for many years, hasn’t he? A. —He was 
a sheriff there. I don’t know how leading he was before that: I 
never had any intimate acquaintance with him. My knowledge of 
him principally was b} T way of reputation. He has been an active 
man there; how leading, I could not judge as well as those in the 
count # y. 

Q. (By Mr. Wadleigh.) —Then, }’our acquaintance with that 
county and its affairs is not sufficient to enable }’ou to say whether 
he has been a leading man in the count} r , or not? A. —No, sir: I 
don’t think it has, — what } t ou call a leading man. 


ERASTUS CHASE. Sworn. 

Q. (By Mr. Burdett.)— Your full name is Erastus Chase ? A. 
— Yes, sir. 

Q. — You reside where ? A. — Harwich. 

Q .—What is your business? A. —I am postmaster, merchant, 
and connected with the bank. 

Q .—How long have you. resided in Harwich, Mr. Chase? A .— 
I have resided there about forty-six years. 

Q. — How far is Harwich from Barnstable? A. —About twelve 
miles. 

Q. — By the railroad ? A. — By the railroad, yes, sir. 

Q. — Farther down the Cape, isn’t it? A. —Yes, sir, down the 
Cape. 

Q. — Towards Provincetown ? A. — Yes, sir. 

Q. — On the same railroad? A. — On the same railroad. 

Q. — Are you acquainted with the people of Barnstable pretty 

largely, or not? A. — Yes, sir : I think I am. 

Q. — How long have you been acquainted there in Barnstable 

pretty generally ? A. — Oh ! ever since — I have lived there since I 

was a bov. 

•/ 


426 


HEARING — JOSEPH M. DAY. [March, 


Q. — Do you know David Bursley ? A. — I do. 

Q. — How long have you known him ? A. — Oh ! I have known 
him from boyhood. 

Q. — From boyhood ? A. — Yes, sir. 

Q. — Do you know of him ? A. — I do. 

Q. — Do } t ou know his reputation ? A. — I do. 

Q. — Do you know his reputation for truth and veracity ? A. — 
Well, I do to a certain extent, I think. 

Q .—What is it? What is his general reputation for truth and 
veracity so far as you know? A .—That is a pretty tight place to 
put a man in, to pass an opinion upon an old acquaintance. Still, my 
impression is that his general reputation for truth and veracity is not 
the best. 

Q. —Is it good, or bad? A. —Well, he, like everybody else, has 
his friends and enemies. His reputation latterly, for the last ten 
} T ears certainty, has not improved any. 

Cross-Examination . 

Q. (B} r Mr. Wadleigh.)—D o you know a gentleman by the 
name of Charles F. Swift? A. — I do. 

Q. — Intimately ? A. — Quite so. 

Q. —Have you had any talk with him about this case lately? A. 

— No, sir: not within — I haven’t seen him, I guess, for perhaps a 
month or more. 

Q .—Are you related to him in any way, by marriage or other¬ 
wise? A. — My son married his daughter. 

Q. —Then, there is quite an intimacy between you and him? A. 

— If you choose to call it so. 

Q. —He used to be collector? A. — He did. 

Q. — He is the gentleman who succeeded Judge Day? A. — I 
think so. 

Q. — Is he here to-day ? A. — Who ? 

Q. — Mr. Swift. A. — I don’t see him. 

Mr. Thompson. Have 3 r ou summoned him to be here? 

Mr. Wadleigh. No, indeed: I supposed 3 t ou would, and there¬ 
fore I wanted to know. 

Mr. Thompson. I didn’t know but 3 r ou had. 

Q. — How long was Mr. Swift collector? A. —Well, I think, if 
m3 T memory serves me — I can’t state exactly how long, quite a num¬ 
ber of 3 T ears. 

Q. —Two years? A. —Oh, yes ! more than that, I guess. 

Q- — Three years? A. —Well, I guess he was collector two 
terms, six years : perhaps not, I can’t state exactly now. 

Q ♦— He was removed, wasn’t he? A .—I think there was a 
little — 3 T es, he was removed, I guess. 


1882.] 


SENATE —No. 150. 


427 


Q • — He was removed? A. —I think so, ves. 

' i/ 

Q. — Was Mr. Bursley active in bringing about this removal? A. 
— Was Mr. Bursley? 

Q- —^Les, sir. A. —I guess he had something to do with it. It 
is generally said he did : I guess he did. 

Q. — Did you hold an office under Mr. Swift? A. — I did. 

Q -—Up to the time of his removal by Mr. Bursle3 r ’s influence? 
A. — I held it after. 

Q . — How long after ? A. — I can’t say. 

Q* —A short time ? A. — Oh ! not a long time : I don’t recollect 
exactly now. 

Q •—How long did you hold that office after Mr. Swift got out? 
A. —I don’t remember just now how long it was. It was some time 
within a year, at any rate. 

— A short time ? A. — Not a great while. 

Q • — Mr. Bursley claimed that Mr. Swift wasn’t the right kind of 
a man to be collector there, didn’t he, and got him out? A. — I 
guess he wasn’t very friendly to him. 

Q. —Have you any doubt that it was through Mr. Burst’s influ¬ 
ence that Mr. Swift was removed at all? A. — Well, I always sup¬ 
posed that Mr. Goss had a good deal to do with it: he was an 
applicant for the office. Mr. Goss — 

Q. — You have no doubt — 

Mr. Thompson. Let him answer the question. 

Mr. Wadleigh. No, that is not the question. I asked him if 
Mr. Bursley was influential in procuring the removal of Mr. Swift. 
[To witness.] Now, you have no doubt about that, have you, sir? 
I don’t ask about Mr. Goss or anybody else. A. — I can’t say. 

Q. — It was so understood, wasn’t it? A. —I don’t know how 
anybodj 7 else understood it exactly. 

Q. — Didn’t you understand it so? A. —I understood that Mr. 
Goss was an applicant for the office, and that he was the party that 
largely got him out. 

Q. — Did Mr. Bursley help him? A. —I don’t know but he did : 
I don’t recollect that he did. 

Q. —Haven’t you testified that he did? A. —No, sir, I have 
not. 

Q. — Now, Mr. Bursley and Mr. Swift were not on very good 
terms, were they? 

Mr. ThoMPSON. I don’t know how this can be material. Of 
course, to a reasonable extent — 

Mr. Wadleigh. It isn’t material, when 3*011 bring on a witness 
here to swear down the reputation for truth and veracity of one of 
the leading men in Barnstable County, — it isn’t material for me to 




428 


HEARING —JOSEPH M. DAY. [March, 


show that he held an office under the man whom Mr. Bursley pro¬ 
cured to be removed, is it? I think it is. 

The Chairman. Go on with your question. 

Mr. Thompson. But you are assuming a good deal, I think, that 
does not appear. 

Mr. Wadleigh. Not at all. 

The Chairman. I understood the witness, in the first place, to say 
that Mr. Bursley was instrumental in getting him out. 

Witness. No : I did not say that. 

[The stenographer was requested to refer to his notes of the testi¬ 
mony in question, and the statement of the witness was read.] 

Witness. I wish to correct my testimony, then. I don’t know 
that he did. 

Q. —Didn’t you so understand at the time? A. —I don’t recol¬ 
lect that I understood it so. I had — 

Q. —Was Mr. Bursley friendly to Mr. Swift, or not, in that matter? 
Now, you know. A .— I don’t seem to recollect how their relations 
were at that time. 

FREEMAN H. LOTHROP. Eecalled. 

Q. (By Mr. Burdett.) —You are register of probate and insol¬ 
vency for the county of Barnstable, are you not? A. — I am, sir. 

Q. — How long have you lived in Barnstable ? A. — Nearly all the 
time since forty years ago come next month. 

Q. — Substantially all your life? A. —Born there, sir. 

Q .— You live there now? A. — I do, sir. 

Q. —Of course you are acquainted, then, with the people of the 
village pretty generally, are you not? A. — I am. 

Q. — Do you know Mr. David Bursley? A. —I do. 

Q. — How long have }T>u known him? A. — Ever since I was old 
enough to know any of our prominent public men. 

Q. — Do you know what is his general reputation for truth and 
veracity in the community there? A. — I do. 

Q. — What is it, good or bad? A. — It is bad. 

Cross-Examination . 

Q. (By Mr. Wadleigh.)—Y ou register under Judge Day now, 
Mr. Lothrop? A. —I do, if you put it in that way. 

Q. — You are register of probate in the same office with him? A. 
— I am, sir. 

Q . — Now, did you ever hear Mr. Bursley’s reputation questioned 
in reference to any business matters? A. —I have, sir. 

Q. — What? A. — Financial matters. 

Q. —Well, what? A. —County matters. 


1882.] 


SENATE —No. 150. 


429 


Q •—What? in what respect? A. —I should like to get at it the 
shortest way I can. 

Q • —I do not ask you in reference to any of these political matters, 
— anything except in reference to politics. A. — I have in mind 
now a case in which he published a statement which was proven false. 

Q . —Published in what respect? A. — In order to affect the elec¬ 
tion. 

Q • — Oh ! that is some political matter. A. —This was a financial 
matter. 

Q • — Oh, well, it was in reference to politics. A .—Very well, 
sir: it was to affect politics. 

Q • — Of course. Just lay politics right aside. I ask } t ou whether, 
in connection with any private business matter, relating to business 
and not politics, you heard any thing talked about his reputation for 
truth and veracity? A. — If you will omit the word “private,” I 
will say yes. 

Q. — By private I mean not public, — not political in its character. 
A. — Certainly, sir : I have. 

Q. — What ? Who was it ? A. — A number. 

Q. —Well: who was it? A. —Samuel Snow for one. 

Q. (By Mr. Thompson.) — He is the senator, isn’t he? A. —Yes, 
sir. 

Q. (By Mr. Wadleigh.)—W hat did he sa}^ about it? A. — He 
said he would not believe it. 

Q. —About what? A. —About matters in regard to bank affairs. 

Q. —What bank? A. —Barnstable Savings Bank. 

Q. —What was the subject of discussion? was it Mr. Bursley’s— 
A. —I have heard him so many times — 

Q .—Was Mr. Bursley one of the trustees of that savings bank? 
A. — He was, sir. 

Q. —Was this in connection with a statement made by the trustees 
as to the standing of the bank? A. — Oh, no, sir! I hadn’t that in 
mind at all. 

Q. — What was it? A .—About business transactions, — I can’t 
recollect all of them. 

Q. — Of the bank ? A. —■ Of the bank, and his actions with regard 
to the bank. 

Q. —What did he say about it? He said he would not believe it, 
did he? A. —He had no — yes, sir. 

Q. —That is all, is it, that he said? A. — No, sir. 

Q .—What else? A .—I can’t recollect the conversation in par¬ 
ticular cases, but I know that he has stated to me that he would not 
believe him. There has been several years, at any rate, of consider¬ 
able trouble with regard to the bank affairs; and I have conversed 
hundreds of times with Mr. Snow. 


430 


HEARING —JOSEPH M. DAY. [March, 


Q. — Oh ! there has been a row down there about the bank ? A. — 
There has been a row, if you choose to put it in that way: yes, sir. 

Q .—I am not talking now about any business matter connected 
with your rows about the bank or politics. 

Mr. Burdett. I should think that was a business matter pretty 
nearly. 

A. — I can’t conceive of any controversy without a row, as you 
put it. 

Q. — Now, I want to ask you who else you have heard talk about 
his reputation for truth and veracity ? A. — I have heard Smith K. 
Hopkins. 

Q. — He is one of the judge’s friends. A. — I should class Mr. 
Harriman among the judge’s friends as much. 

Q. (By Mr. Burdett.)—M r. Harriman over there? A. — Yes, 
sir: certainly. 

Witness. I have no knowledge except of his being counsel in the 
affair. In saying he is a friend of Judge Day’s, I mean to say until 
within a short time, — perhaps I might qualify it in that way. 

Q. (By Mr. Wadleigh.) — Do you mean to say under oath that 
Mr. Harriman is just as friendfy to Judge Da } 7 as Mr. Hopkins? A. 
— No, sir: I don’t say so; I am not talking about the degree of 
friendship. 

Q .— Who else have you heard speak about Mr. David Bursley? 
A. — Mr. Gorham Hallett. 

Q. — Who else? A. — Mr. Nathan Crocker, Mr. Anson D. Loth- 
rop — 

Q. — Your father? A. — Yes, sir. 

Q. —He has had some trouble with Mr. Bursley, hasn’t he? A. 
-—Not that I know of, sir. 

Q. — Well, go ahead : who else? A. — Very well, sir ; if I might 
be allowed, a word is necessary to state that a person is telling an 
untruth — 

Q. — Who else have you heard talk about his reputation for truth 
and veracity, except those whom you have named? 

[Witness hesitated.] 

The Chairman. Go on : that is a proper question. 

A. —-Mr. Edwin S. Finney. 

Q. — Is he here to-day? A. —Yes, sir. 

Q. —When did you hear him speak about it? A. —A great 
many times. 

Q. — When? A. —When I have been in conversation with him. 

Q. —When? A. —Well, I can’t name the date ; probably within 
ten days in one case, and probably within four years in another. 

Q . — Well, name some more. A. —There are several more whom 


1882.] 


SENATE —No. 150. 


431 


I have heard: I have heard a great many — I can’t name one-Tialf 
that I have heard. 

Q. — Can you name anybody that is not here with these friends 
of Judge Day to-day, besides those you have named? and, if so, who 
is he? A. — I don’t know what you mean by friends. 

Q. — Can you name anybod} 7 , except those people who are in this 
room here to-day? A. — Certainly: Mr. Gorham Hallett is not 
here, Mr. Nathan Crocker is not here. 

Q. —Besides those whom you have named? [Witness paused.] 
Got any thing to saj 7 , Mr. Lothrop? A. —I think I could name a 
good manj 7 more by thinking them over. 

Q. —Well, time is limited in human life, and the present age is 
short. Answer as soon as possible. [Pause.] You don’t think of 
anybody else now, do you? A. —No, sir, I don’t think of anybody 
at this moment that I am willing to swear to. 

Q. —Are j 7 ou willing to swear to a name? A. —Yes, sir, I am 
willing to swear to a name. 

Q. —Who is it? A. —Mr. William D. Holmes. 

Q. — Anybody else ? A. — Mr. Nathaniel Sears, although he hap¬ 
pens to be here to-day. 

Q. —Well, go ahead: exhaust your list as soon as possible. 
A. — I cannot exhaust the list, sir. I know I should think of a 
dozen more, if I had a little time given me. 

Q .— Mr. Bursley is a gentleman who has very strong friends and 
very strong enemies, isn’t he? A. —I think it likely, sir; but I 
wish to distinctly state that I am not a strong enemy of Mr. Bursley. 

Q .— If you will simply answer my questions, Mr. Lothrop, } 7 ou 
will confer a great favor on me and on this Committee. A. — I will 
try to, sir. 

Q. — Now I ask you whether, or not, Mr. David Bursley is a man 
who has strong friends and strong enemies ? Answer yes or no to 
that, sir. 

Mr. Thompson. If he knows. 

Mr. Wadleigh.. Yes, if he knows. Of course he does know, for 
he has lived there. 

A. — Will you divide the question, sir? 

Mr. Thompson. I object to that, because it cannot be competent - 
whether he has strong friends or strong enemies. It doesn’t have 
any bearing upon his reputation. 

Witness. Yes, sir : he has strong friends and strong enemies. 

Mr. Wadleigh. That is all I have to say about it. 

Q. (By Mr. Thompson.) — You say you heard his reputation 
questioned in business matters with reference to the county ? A. — 
Yes, sir. 


432 


HEARING —JOSEPH M. DAY. [March, 

SV »!*$&• " 

Q. —In what respect, —what business matters of the county? A. 
— He made a statement with regard to financial matters in the count} 7 , 
and that was contradicted by the county commissioners and the 
county treasurer. 

Q. — Are these people that you have named people residing in the 
immediate vicinity of Mr. Bursley? A. — Most of them are, sir. 

Q. (By Mr. Wadleigh.) —They claimed that Mr. David Bursley 
was mistaken, didn’t they? A. —They did, certainly. They claimed 
that he made a false statement. 

Q. —False statement about what? A. —About certain payments 
to the county of Barnstable. 

Q. — By whom ? A. —By himself. He said that he made certain 
payments, and they denied it. 

Q. — Well, what then? What was the upshot of the whole thing? 
A. —It was simply — you asked what I had heard about his reputa¬ 
tion. 

Q. — What was the upshot of all that matter? How did it end? 
How long ago was that? A. — I think it was three years: it may 
have been six, but I think three — no, it must have been six years : 
time flies. 

Q. —That was a controversy about accounts, wasn’t it, — sheriff’s 
account? A. —Yes, sir : he made a certain statement. 


SMITH K. HOPKINS. Recalled. 

Q. (By Mr. Burdett.) — You reside at Barnstable? A , — Yes, 
sir, I reside there now. 

Q. — You are clerk of the Supreme and Superior Courts of that 
county? A. — Yes, sir. 

Q. — How long have you lived in Barnstable? A. — I have lived 
there with my family since the last part of October, 1875. I went 
there as an officer in January, 1874. 

Q. — How long have you been acquainted in Barnstable? A .— 
In Barnstable? 

Q. —Yes, sir, with the people there. A. —Well, with some of 
them I have been acquainted nearly twenty-two years ; with others, 
* only from the time I went there to live. 

Q. —Do you know Mr. David Bursley? A. —I know him, sir. 

Q. — How long have you known him? A. —It will soon be 
twenty-two years. 

Q. — Have you known of him during that time, what his reputation 
was in the community? A. — I have known of him all that time 
except three years. 

Q. — When was that? A. — That was in ’63, ’64, and ’65, when 


1882.] 


SENATE —No. 150. 


438 


I was away in the navy, and didn’t see him during those three 3 r ears, 
if I remember rightly. 

Q- — Do 3 r ou know what his general reputation for truth and ve- 
racit3 T is? A. — I never have heard the words “ truth and veracity ” 
mentioned in connection with him, as I remember. If 3 r ou wish me 
to state that I have heard him spoken of as a man of truth and ve- 
racit3', I would say that I have: I have heard him spoken of very 
frequently. 

Q • — Of course I do not expect 3 T ou to state, and the question does 
not imph T , that you have heard anybody say that his reputation for 
truth and veracity is good or bad. 

Witness. I don’t want to sa3 r a word, sir, if I can help it, — not 
one word. 

—Do you know what his reputation for truth and veracity is? 
A. — Onty b3 T hearsay, sir. 

Q •—Of course, the question calls for hearsay. What is it, good 
or bad ? A. — It is ver3 r bad, sir, I am sony to say. 

Cross-Examination. 

Q. (I>3 T Mr. Wadleigh.) —Is your office in the same building with 
Judge Day’s? A. —Yes, sir. 

Q. —Directly across from his, — the place where he stops? A. — 
Directly across the hall, sir. 

Q. —Who asked 3'ou to testify in regard to David Bursley? A. — 
Mr. Da3 T , sir. 

Q. — When? A. —Some time before his deposition was taken, he 
asked, if I remember the conversation correct^, —he said to me that 
Mr. Bursley's deposition was to be taken, and he must defend him¬ 
self; and would I state — would I be willing to state to the Commit¬ 
tee what I knew about Mr. Bursley. I said generally I would, but I 
did not want to answer as to aiy particular matters, — that if I re¬ 
ceived a subpoena, I should attend. 

Q. —Mr. Bursle3 T is a man who has been very active there, in that 
county, isn’t he, politically? A . — He is a very active man, sir. 

Q. — And he has his strong friends and his strong enemies ? A. — 
That I can’t sa3', sir, whether they are strong or weak. 

Q. — Well, what do 3’ou judge? A .—I should judge that they 
were not different from other people’s friends. 

Q. — You haven’t been on very good terms w r ith Mr. Bursley? 
A. —Yes, sir. 

Q .—Have you? A. —Alwa3 T s been on very good terms with 
him, sir, — always. 

Q. — Have you ever had any misunderstanding with him? A .— 
No personal difficulty: we haven’t understood things alike, sir. 


434 


HEARING — JOSEPH M. DAY. [March, 


Q. —There has been some difference between you about something 
or other? A. —Difference of opinion, yes, sir. 

Q. —Has there with reference to Judge Da}' himself? A. —How 
is that, sir? 

Q. —You have been one of Judge Day’s friends, sir? A. — No, 
sir : not any more than I have with you, sir, — not so much. 

Q. —I ask you, whether, or not, Mr. Bursley and Judge Day have 
not been on very good terms? A. —Mr. Bursley and Judge Day? 

Q. —Yes. A. —I don’t think they have : I only heard some slight 
altercation between them once only. 

Q .— In that matter, haven’t you been friendly to Judge Day, sir? 
A. —Not so friendly as I have to Mr. Bursley. I have had more 
difficulty, more controversy, and more personal altercation with Judge 
Day than any man in the county. 

Q. —You have had trouble with him? A. — I have, sir. 

Q. —In what respect? 

Mr. Burdett. It is difficult to see how this is material in regard 
to the reputation of Bursley. . 

The Chairman. I will rule that question out. 


ANSON D. LOTHROP. Sworn. 

Q . (By Mr. Burdett.) — Your full name is Anson D. Lothrop? 
A. — Yes, sir. 

Q. — You reside in Barnstable, do you not? A. —I do. 

Q. —How long have you lived there? A. — Sixty-nine years and 
some months, most of the time. I have been absent a few years. 

Q .—You are very well acquainted, are you not, with the people 
of that town and section? A. — I am. 

Q. — Do you know David Bursley ? A. — I do. 

Q .— How long have you known him? A. — Ever since I have 
known anybody outside of my family. 

Q. —Do you know what his reputation in the community is? A. 
— Well, if I may have my own way to answer it — 

• Q. —Just say yes or no. A. — I know what his reputation is. 

Q. — Do you know what the general reputation of David Bursley 
is for truth and veracity? A. — Well, I should say his general repu¬ 
tation was bad. 

Cross-Exa m inat ion. 

Q . (By Mr. Wadleigh.)— Mr. Bursley was sheriff for a long 
time in your county, wasn’t he? A. —He was so: he has been 
since nearly 1850 deputy and sheriff, except about eight years. 

Q. — A very active man there, I suppose? A. —Yes, sir. 

Q. — And a man with strong friends and strong enemies? A .— 


1882.] 


SENATE —No. 150. 


435 


Well, I should judge that his friends were — to speak as I think — 
dependent upon the favors they could get from him, as he was a lead¬ 
ing politician of the count} 7 ; and on that ground I couldn’t say 
whether they were friends, many of them. 

Q — How about his enemies? A. — Well, his enemies are strong, 
I think; though I don’t know. Most of the people of Barnstable 
think that he has as good qualities as an} 7 other man in the village. 

—Who? A. —Mr. Bursley, — that he would help the sick, or 
the distressed, or those who needed help, as any other man. 

Q . — He is a very kind-hearted man ? A. — In that respect: yes, 
sir. 

Q. —And a man who wouldn’t want to see anybody wronged? 
A. — Unless he got wronged himself, I might say; that is, I give 
it as my opinion, if you ask it. 

Q. — You think the majority there think he is a very good, kind- 
hearted man, don’t you? A .—No, sir: I don’t think that was the 
question you asked. I told you he had good qualities. 

Q. — What were his good qualities? A. — That he would assist 
a man in distress : If a }'oung man wanted aid, he would help him. 

Q .—You have been on good terms with him always? A. — I 
have, alwa}’s. We never had but one word of difficulty; and then I 
had the best of it, and that ended it. We were always good friends, 
I believe. 

Q. —You did have some trouble, and you got the best of it, you 
say? A. — Yes. It was some twent} 7 odd years ago. There was 
a charge made that I made a statement — 

The Chairman. He has not asked the particulars. 

Q .—You signed the remonstrance in this case? A. — I did last 
year. 

Q. —You were not asked this year? A. —I was not called upon 
this } r ear, and so I didn’t sign it. 

Q .—You are friendly to Judge Day? A. —Yes, sir, friendly to 
every man that I know of in Barnstable. 

Q. — Who is it that you have heard speak of Mr. Bursley? A. — 
So far as individuals are concerned I might name, perhaps — I will 
state the case as it is. In the stores, shops, post-offices, Mr. Burs- 
ley’s reputation is spoken of often. Speaking of Mr. Bursley, you will 
hear remarks — I could not repeat them, perhaps, in the words that 
I have heard — that “It was one of Mr. Bursley*s stories,” that 
“Mr. Bursley exaggerates,” or “Mr. Bursley was false in making 
this statement,” or “ He may be caught some time.” 

Q. —Whether, or not, you ever heard his reputation for truth 
questioned in any business matter, simple business matter, aside from 
politics or any thing mixed up with politics? A. — I have, sir. 


436 


HEARING — JOSEPH M. DAY. [March, 


Q. — How long ago? A .—Well, the last one that I heard was 
some time last September. 

Q. —That was in regard to what business? A. —It was with 
regard to moving the soil or loam — sods — from a graveyard. He 
was charged with it, and denied it. It was proved by the two men 
that he employed, but he still denied it. That is the last case. 

Q. — That is your account of it? A. —That is my account of it, 
yes, sir. That is the general opinion. You get every witness, and 
they will have the same story. 

Q. — Were there any legal proceedings about it? A . —There was 
not, according to my recollection : I know of none. 

Q. (By Mr. Crowley.) —-Was there a fight down there about it? 
A. — No, no fight, — hard words. 

Q. (By Mr. Wadleigh.) —Did you have any thing to do with it? 
A. —Nothing whatever. 

Q. —Did you talk with him about it? A. —No, sir. 

Q. — Did }’ou talk with the two men about it? A. —I did, to get 
the information. I heard the report; and I asked men that I thought 
were as friendly to Mr. Bursley as anybody, and they gave the state¬ 
ment— 

Q. — No, no: did you talk with the two men who you say proved 
it the contrary? A. —Yes, sir. 

Q. —You went right to them? A. —No, sir, I didn’t: I heard 
them say what Mr. Bursley"’s business was where they were. They 
were to work on the agricultural grounds,—I had charge of the 
grounds at that time, — and they told me what Mr. Bursley came for. 

Mr. Thompson. I don’t see how this can be material. 

Mr. Wadleigh. I don’t see as it has any thing to do with it. It 
is of no importance any way. 

Witness. You asked me if I knew of any particular case, and I 
gave you one. 

Q. — Now, Mr. Lothrop, did you ever hear anybody else say any 
thing, —any private business matter, I don’t refer to any agricultural 
grounds or any 7 - thing of that kind, — was it ever suggested, in any 
matter of business, that y T ou could not take Mr. Bursley"’s word, by 
any man that you can name? A. —I don’t know as I can give any 
man’s name to any" special piece of business ; but I can give y r ou his 
general reputation — 

Q. — Well, I don’t mean what a man’s political enemies say about 
him, or any thing of that kind. Did you ever hear any man say Mr. 
Bursley-’s word in a business matter could not be depended upon,— 
a strictly private business matter? A. —I don’t remember of any 
particular case. 

Q . (By Mr. Hill.) — I suppose, Mr. Lothrop, that there has been 


1882.] 


SENATE —No. 150. 


43T 


considerable talk about Mr. Bursley’s reputation within the last six 
months in various places around Barnstable, hasn’t there? A .— 
Not much more than there has been for the last twenty } T ears. He 
has been a leading man. 

Q. — He has been a leading man down there? A. —Yes, sir: in 
some departments, say politics. 

Q. —Particularly politics? A. —Yes, sir: he belonged to our 
party, and was the leader there, you might say. 

Q. —What is your party? A. —Well, it is the Republican party, 
I suppose : it is called so. 

Adjourned to Tuesday, March 21, at 10.15 o’clock. 


438 


HEARING — JOSEPH M. DAY. [March, 


TWELFTH HEARING. 

Boston, State House, Room 10, 
Tuesday, March 21. 

The Committee resumed the hearing at 10.40 o’clock a.m., Senator 
Jennings presiding. 

NATHAN EDSON. Sworn. 

Direct Examination by Mr. Burdett. 

Q. — Your full name is Nathan Edson? A. — Yes, sir. 

Q. — Do you reside in Barnstable? A. — Yes, sir. 

Q. — You are one of the selectmen of that town ? A. — Yes, sir. 

Q. — How long have you been so? A. — This is ray fourth year. 

Q. —You are also overseer pf the poor there? A. — Yes, sir. 

Q. — How old are you, Mr. Edson? A. —I am sixty-four. 

Q .—How long have you resided in Barnstable? A .—Twenty- 
two years. I formerly belonged to Yarmouth, but it is twenty-two 
years since. 

Q. — So that you have live’d at Barnstable for the last twenty-two 
years? A. — Yes, sir. 

Q. —Do you know one David Bursley ? A. — Yes, sir. 

Q. — How long have you known him? A. —Nearly all the time 
I have lived there : I don’t remember when first I knew him. I knew 
him when I first left the place and afterwards. 

Q .—Do you know what his general reputation for truth and 
veracity is? and, if so, whether it is good or bad? A. — Well, I can 
say this : it is good and bad, both. 

Q. —Explain. A. —I will: if the man was owing me a small 
amount of money, and promised to pay, I should say it was as good 
as a bond ; but politically’ I should not believe him. His reputation 
as a politician is not good. If he has a spite against an} 7 one he 
cannot help — 

The Chairman. State simply whether the reputation of David 
Bursley for truth and veracity is good or bad. We don’t care to go 
into an extended discussion about the matter of political feeling. 

Mr. Burdett. I suppose he has a right to explain what he means 
by part good and part bad? 

The Chairman. No, sir: noton direct examination, as I under¬ 
stand it. 

Witness. I should say it was bad, although it is good on some 
points. 


1882.] 


SENATE —No. 150. 


439 


Cross-Examination . 

Q. (B} t Mr. Harriman.) — Mr. Edson, you should say it was bad 
in politics and good in eveiy other respect? A. — Well, I can’t say 
it was good in every other respect. 

Q • — What respects do you mean? A. — I mean to saj r , if he 
owed a man a bill, his word is as good as his bond: if he says he will 
pay, he will pay. 

Q. —At the exact day? A. —Yes, sir. 

Q• — And if he made a statement to you about any thing except 
politics, you would believe it, would you not,—in business matters? 
A. —Not always. 

Q • — Whom did you ever hear question his reputation for truth 
and veracity, except in matters of politics? A. —Several. 

Q. —Who were they, — political enemies to him, or not? A. — 
No, sir. 

Q. — Men around the village? A. —Yes, sir. 

Q. — Where this matter has been talked over a good deal, — in 
regard to matters of fact, do }*ou mean that? A. —I do : he either 
had a very bad memory or else was lying wilfully. 

Q . — Then, } t ou admit that it might be something that he had 
forgotten? You admit that he has a bad memory? A. —I said it 
might be bad memory. 

Q. — Hasn’t Mr. Bursley always been regarded as a man on the 
right side of all moral questions, — the church and temperance? 

Mr. Thompson. I don’t see what that has to do with his repu¬ 
tation for truth and veracity. 

[The question was excluded b} T the Chairman.] 

Q. (By the Chairman.)— Do you think Mr. Bursley under oath 
would lie? A. —It depends on circumstances. 

Q. — You think he would lie sometimes under oath? A. —I think 
he would. 

Q. (By Mr. Harriman.) — Do you think he would on his death¬ 
bed ? 

Mr. Thompson. The witness doesn’t know whether he is on his 
death-bed. 

[Question not pressed.] 

JOSEPH K. BAKER. Sivorn. 

Direct Examination by Mr. Burdett. 

Q. —Your full name is Joseph K. Baker, is it not? A. —Yes, sir. 

Q. —You reside at Dennisport? A. —Yes, sir. 

Q. —You have been member of the State Senate? A. —Yes, sir. 


440 


HE ARING — JOSEPH M. DAY. [March, 


Q. —And of the Governor’s Council? A. —I have, sir. 

Q. —And member of the House, also? A. —Yes, sir. 

Q. — Mr. Baker, how long have } r ou lived in Dennisport? A .— 
That has been my home all my life. 

Q. — How far from Barnstable is it? A. — About .ten miles,— 
from the court-house. 

Q. —Are you acquainted in Barnstable? A. —Yes, sir, — some. 

Q. — How long have 3 t ou been acquainted in Barnstable ? A. — 
Forty years, perhaps. 

Q. —Do 3 T ou know Mr. David Bursley? A. — I do. 

Q. — How long have you known him? A. —About thirty years, 
I should judge. 

Q. — Do you know what his general reputation for truth and veracity 
is, — whether it is good or bad? A. — I should say his general repu¬ 
tation was not good. 


Cross-Examination. 

Q . (By Mr. Harriman.)— Do you mean to apply this to any 
thing except politics? A. —Well, yes. 

Q. — Have you heard it questioned in any other respect except 
politics ? A. — I have. 

Q. — By whom? A. — A number of gentlemen : I don’t know as 
I can tell all. 

Q. — Who, except his political enemies? A. — I don’t know about 
his political enemies. I don’t know as they are, or not. I am satis¬ 
fied I heard Mr. Samuel Snow and Mr. Gould,—Dr. Gould. 

Q. — What was Samuel Snow talking about? A. —I think it was 
in connection with a savings bank — 

Q. — What was the matter that he was talking about? A. — Only 
about his general reputation. 

Q. — Was it about his general reputation, or that he didn’t believe 
Mr. Bursley’s version of a certain matter? A. —I think his general 
reputation. 

Q. — Talking about his general reputation? A. —Yes, sir. 

Q. — What was the matter he was talking about? A. — General 
business. 

Q. — What was it? A. — I don’t know : I can’t say. 

Q. — Can }'ou swear that it was an 3 T thing more than a particular 
transaction that he didn’t believe Mr. Bursley’s version of? A. —I 
don’t think it was. 

Q. — Would you swear it was? A. —I wouldn’t swear but it 
was his general reputation. 

Q. — You have been opposed politically, have you not? A. — 
Not alwa 3 r s: we have about always belonged to the one part 3 r . 


1882.] 


SENATE —No. 150. 


441 


Q • —Have you been opposed politically to each other? A. — We 
have been in the same party, both in the Republican party. 

Q> — The Republican party I mean: have 3*011 been opposed in 
that? A. —I have been opposed to some candidates he has been in 
favor of. 

Q . — You have been particularly favorable to Mr. Swift, haven’t 
3*011? A. — We were friendly. 

Q. — You held office under him? A. —I did, sir. 

Q. —You went one of his sureties also? A. — I was. 

Q. — And Mr. Bursley was actively interested in getting him 
removed? A. —I think he was one time, and he was sometimes 
friendly to him. 

Q. — At the time Mr. Swift was removed, he was actively inter¬ 
ested, and employed in doing that? A. — I never understood that 
Mr. Swift was to be removed : I understood that he resigned. 

Q. — You testified in Judge Da}^’s favor last year, didn’t 3*011? 
A. — I testified here. I don’t know as I testified in his favor, or 
against him.. 

Q. — You announced yourself as actively interested in his behalf? 
A. — I don’t know that I announced it. 

Q .—Haven’t you talked with various individuals on it? A. — I 
have stated what I thought was true. 

Q. — Wherever 3*011 have been, in the State House and elsewhere 
— spoken in his favor? A. —If I thought so, I spoke that wa3 T , no 
doubt. 

Q .—Your relations with Judge Day have alwa3*s been intimate 
and pleasant, haven’t they? A. — Never been at all unfriendly that 
I know of. 

Q .—You have been appointed by him as executor and adminis¬ 
trator of some very important estates? 

The Chairman. I don’t see how this is material. 

NATHANIEL SEARS. Sworn. 

Direct Examination by Mr. Burdett. 

Q. —Your name is Nathaniel Sears? A. —Yes, sir. 

Q .—You reside in what place? A. —In Hyannis, a village in 
the town of Barnstable. 

Q. —How long have you lived there? A. —A little over twent3 T - 
two 3*ears — it was twent3*-two 3*ears, last July. 

Q. — Have you been a member of the General Court for Barnstable ? 

A. — I have, sir. 

Q .—Are you acquainted in Barnstable generally? A. —I am, 


sir. 


442 


HEARING — JOSEPH M.' DAY. [March, 


Q. — Have 3*011 been a conductor on the Old Colony Railroad for a 
number of years? A. —Yes, sir. 

Q. — How many 3^ears ? A. — Since I went to Barnstable. 

The Chairman. This man sa3*s he lived twenty-two 3’ears in 
H3’annis. Now, what necessity is there of going farther with these 
preliminaries ? 

Mr. Burdett. His is a reputable calling ; and I supposed that it 
was alwa3's admissible to show who the witness is. 

Q. (B3’ Mr. Burdett.) —Do you know Mr. David Bursley? A. 

*—I do. 

Q .— How long have you known him? A .—Well, twenty’-two 
3 r ears. 

Q. —Do 3 T ou know what his general reputation for truth and 
veracit3 T is? and, if so, is it good or bad? A. — I have heard it 
spoken of very often while passing on the cars. 

The Chairman. That is not the question. 

Witness. I have heard it called bad oftener than any^ other way. 

Mr. Harriman. That is not an answer, but I don’t object to it. 

Cross-Examination. 

Q. (By* Mr. Harriman.) — Then, you have heard it spoken of both 
ways? A. —I seldom have heard a person comment on it excepting 
where some one spoke of it as bad. 

Q. —Then some one would talk the other way? A. — Certainty. 

Q. — Mr. Bursley is a man who has his friends and his enemies? 
A. — Yes, sir: he is a man of strong prejudices ; I should not take 
his word against any one he is prejudiced against. 

Q .—He has strong enemies and strong friends? A. —I think 
so. 

Q. — If his enemies were speaking badty of him and his friends 
were around, they would speak well of him, would they not? A. — 
Those persons I have heard speak of him were not enemies, but men 
that stand as high as any^ in Barnstable Count3 T . 

Q. —But his political enemies? A. —No, sir, not political ene¬ 
mies. 

Q. — You say there were two sides to it? A. — I say there are. 

Q. — You signed the remonstrance in favor of Judge Day 7 ? A. — 
No, sir. 

Mr. Crowley. It’s rather a puzzler to me how these can all be 
political enemies, — all those people down on the Cape. 


1882.] 


SENATE —No. 150. 


448 


CYRUS B. SMITH. Sworn. 

Direct Examination by Mr. Burdett. 

Q. —Where do 3*ou reside? A. —Barnstable. 

Q •—How long have you lived there? A. — All my days, pretty 
much, with the exception of a few years in San Francisco. 

Q • — Do 3*ou know Mr. Bursley? A. —I do, sir. 

Q •— How long have you known him? A. — Ever since I have 
been big enough to know an) T thing. 

Q. (By* the Chairman.) —How long is that? A. —Thirty* y*ears. 

Q. (B3* Mr. Burdett.) —Do 3*011 know Mr. David Burst’s repu¬ 
tation for truth and veracity ? and, if so, is it good, or bad ? A. — 
I should say it was bad. 


Cross-Examination . 

Q. (By r Mr. Harriman.)— You. became very indignant with Mr. 
Bursley, didn’t you, because of the course he took with your sister 
concerning the settlement of her mother’s estate? A. —I did, sir. 

Q .—You made some very severe statements against Mr. Bursley 
at that time when he was acting in the with your sister? A. — I 
don’t know as I did ; perhaps I might. 

Q. —Didn’t 3*011 make the statement, that if he had been ten 3*ears 
3’ounger 3*ou would have “ gone for ” him and given him a thrashing? 
A. —Not at that time. 

Q .—Last September? A. — I think something of that sort 
may* have happened last September. 

The following evidence from the record of last year was then speci¬ 
fied by remonstrants’ counsel for insertion in the report of the pres¬ 
ent investigation. 


EBEN B. CROCKER. Sworn. 

Direct Examination by Mr. Burdett. 

Q. — Your full name? A. — Eben B. Crocker. 

Q. — And 3*our residence? A. — Barnstable. 

Q. — What is your business ? A. — Well, I have a farm ; and I am 
deputy-sheriff also. 

Q. —How long have you lived in Barnstable? A. —I was born 
there, and have always been there except when I was at sea. 

Q. — How old are you now ? A. — Twenty-seven. 

Q. —Do you know Mr. David Bursley? A. — Yes, sir. 

Q. — How long have you known him? A. —Well, ever since I 
have known any one. 


444 


HEARING —JOSEPH M. DAY. [March, 


Q. — Do 3*011 know what liis general reputation for truth and veracity 
is? and, if so, is it good, or bad? A. — I have heard it questioned. 

Q. —What do 3*011 say about it? If 3*011 know, is it good, or bad? » 
A. — It is a little difficult to answer, sir. In some respects it was 
good, and in some others perhaps not. I should think his general 
reputation was not good. 

Cross-Examination. 

Q. (By Mr. Wadleigh.)— You say you are deputy-sheriff? A. 

— Yes, sir, I am. 

Q. — There has been some political trouble down there about sheriffs 
and deputy-sheriffs, has there not? A. —Yes, sir. 

Q. — And it has been going on for some years? A. —Yes, sir. 

Q. — Do 3*011 know Mr. Anson D. Lothrop?. A. —Yes, sir, I 
know him. 

Q. — He used to be dcput3*-sheriff? A. —Yes, sir. 

Q. — You don’t remember that? A. — Yes, sir, I remember ; but 
I had nothing to do with it at the time. 

Q. —Do 3*011 know who was sheriff when he was deput3 r ? A. —I 
think Charles C. Burse. 

Q. — Who succeeded him? A. — Mr. Bursle3 r . 

Q. — Then he went in, and Bursley was turned out? A. — Yes, 
sir. 

Q. — Now, Mr. Crocker, 3*011 held under Mr. Harris? A. —Yes, 
sir. 

Q. — Did Mr. Bursle3 r oppose Mr. Harris in an3* wa3 T ? ' A. —Yes, 
sir. 

Q. — You are one of Mr. Harris’s deputies? A. —Yes, sir. 

Q. — I suppose you are around a good deal with these people who 
don’t like Mr. Burslc3*? A. —Well, sir, is it admissible forme to 
sa3 T a word or two on that? 

The Chairman. State what 3*011 know. 

Witness. I wish to say, that, in m3 r relations with Mr. Bursle3*, I 
have never had an3* trouble or quarrel; and, as far as his treatment 
of me is concerned, I have nothing to say against him. 

Q. — He has treated you as an honorable, high-minded man would 
do, hasn’t he? A. — Now, as far as his treatment of me goes, I 
have nothing to say against him. 

Q. —Aren’t 3*011 around in the company of gentlemen who do not 
like him? Just answer that. A. — Yes, sir, I am sometimes. 

Q .—* Now, 3*011 say in some respects his reputation is very good 
and in other respects not? A. —Yes, sir : I think so. 

Q. — Now, in all business matters, is it not good? and is it not so 
except in a few political squabbles? A. —Yes, sir : I think it is. 


1882.] 


SENATE — No. 150. 


445 


Q. (Ity Mr. Thayer.)— I understood Mr. Wadleigh to ask if 
there had not been any political troubles among the sheriffs and 
deputy-sheriffs down there? A. —Yes, sir. 

Q. —You understood him to ask that? A. —Yes, sir. I under¬ 
stood him to ask if there had not been an}^ 

Q. —Now, I want to ask you if the political difficulties and alter¬ 
cations down there are confined to the collector of the port, the judge 
of the probate court, the sheriffs and the deputy-sheriffs? A. — I 
don’t understand } r our question? 

Q. — I want to know whether the political difficulties are confined 
to the collector, the judge of probate, and the sheriffs and deputy- 
sheriffs down there? A. — I am not sufficient of a politician to 
answer. 

Q. — As far as 3'ou have noticed? A. —I presume there are 
differences and difficulties in all offices. 

Q. —Your sheriff, of what political faith is he? A. — He is a 
Republican, sir. 

Q. —Yes, sir : and latterly Bursley was a Republican? A. —Yes, 
sir. 

Q. — And 3'ou are? A .—Yes. 

Q. (By Mr. Crowley.) —I suppose the Republicans are so 
numerous down there that they can afford to fight among themselves ? 
A. — I am no politician : I don’t know. 

Q. (By Mr. Tiiayer.) —What time was it that Mr. Harris came 
in, and his predecessor went out? A. —Mr. Harris didn’t come in. 
He was deputy-sheriff, and succeeded one who died. He was in 
active opposition to Mr. Bursley: it was Mr. Goodspeed — who— 

Q. (By Mr. Crowley.) —Did Bursley have any thing to do with 

his death? A. — Whose death? 

Q. — That of the man who died ? A. — Not that I know of. 

Q .—Do you know whether Judge Day had any thing to do with 
his death? A. —I don’t know that he did. 

Q. (By Mr. Thayer.) —I suppose down there the reputation of 
every man that opposes 3*011 is supposed to be bad? A .—I never 
had an3 T experience in that way. 

* 

ALFRED CROCKER. Sworn. 

Direct Examination by Mr. Burdett. 

Q. _ Your full name is ? A. — Alfred Crocker. 

Q. —Where do you reside? A. —Barnstable. 

Q. — You are postmaster there? A. — I am, sir. 

Q. —How long have you lived in Barnstable? A. —All my life, 
except six months in Illinois, and some time in Boston. 


446 


HEARING —JOSEPH M. DAY. [March, 


Q. — How old are you? A. —Twenty-seven. 

Q. —Do }'ou know David Bursley? A. —I have always known 
him. 

Q. — Do }’ou know his general reputation for truth and veracity ? 
and, if so, is it good, or bad? A. —Amongst his friends his reputa¬ 
tion is good, and amongst his enemies his reputation is bad. 

Q. — Do you know what his general reputation is ? A. — I haven’t 
counted ’em [his friends] up, sir. 

Cross-Examination. 

Q. (B3 7 Mr. Wadleigh.) —I want to ask you whether in business 
matters, and where he made statements about affairs, would not his 
word be taken? A. — I should just as soon trust him in a business 
transaction as any man I am acquainted with. 

Q. —Now, in regard to his statement in this other case, as to what 
occurred down there, in the custom-house troubles, have you any 
doubt of its truth ? 

Mr. Thompson objected, and the question was dropped. 

Q. (By Mr. Thayer.) — I notice you state his word is good in a 
business matter. How is it in politics, or an}’ thing connected with 
politics? I want to get over into the other field, if there is an open¬ 
ing. How do 3 t ou think he would treat a man in politics? A. —He 
is a man of very strong prejudices, but I should sa}-' his reputation in 
that respect was as good as the average politician in Barnstable 
Count}^. 

Q. (By Mr. Wadleigh.) — On either side? A. — On either side. 

Q. (B} r Mr. Crowley.)— You say this man Bursley is one of 
strong prejudices? A. — I do, sir. 

Q. — His prejudices, politically, are strong? A. —They are, sir. 

Q. — And, in regard to a political opponent, he would not hesitate 
to lie about him? A. — I don’t sa} T , sir. 

Q. —Your judgment, sir? A. — I think perhaps his prejudice has 
warped his opinion and judgment. 

Q. — So that he would topple over the verge of truth? — A. —I 
would put him with the average politician. 

Q .—I am asking }’our judgment, whether his prejudice was so 
strong, that’, in regard to a political opponent, he would lie about him ? 
I want your judgment on that. You know the man well, and have 
known him all 3 r our life. A. — I think he would make statements 
that might be taken w r ith allowance. 

1 

Q. — Will he lie about him? A. — I cannot prove that he would 
lie. 

Q. — I am asking }’our judgment, sir. You are his near neighbor 
and personal friend? A. —No, sir, I am not. I have had more 
row T s with him than an}’ man in Barnstable Count}’. 


1882.] 


SENATE —No. 150. 


44T 


Q' —Lou are his near neighbor? A. —Yes : I live next door to 
him. 

Q• — Well, now, give me your judgment. A. — I don’t know. I 
think it is a hard matter to say a man would lie, if you cannot prove 

it. 

Q> — You are willing to say that you are a near neighbor, and you 
do not know that he would lie, but that he will make statements in 
regard to a political opponent, that a man might take with a great 
deal of allowance? A. — I will say so. 

Q. (By Mr. Thayer.) —Are you postmaster down there? A. — I 
am, sir. 

Q . — And in the Republican party? A. — I am, sir. 

Q. (By Mr. Bruce.)— Do you believe that he would come into 
court, and, under oath, perjure himself in regard to a question of 
fact? A. —No, sir : I do not think that he would. 

Q. (By Mr. Crowley.) — Do you believe that he would lie on oath 
in regard to a political opponent? A. —No, sir: I do not think he 
would lie under oath to-da} T . 

Q . (By Mr. Wadleigii.)— Let me ask a vital question, without 
which half of this whole examination is of no consequence : whether, 
from what you know of his general reputation for truth and veracity, 
3’ou would believe him under oath as soon as you would believe men 
in general? 

Mr. Thompson objected ; and the Chairman, after a short discus¬ 
sion, excluded the question. 

Q. (By Mr. Thompson.)— Whether, or not, you have heard the 
question of his reputation for truth and veracity discussed there? A. 
— I have, sir. 

Q. — Frequently’ ? A. — Within the last few months. 

Q. — Frequently? A. —Yes. 

Q. — And }’ou sa3 r , as I understand you, that this is a question 
upon which the3 T take sides, isn’t it? That is what you mean to sa3 T , 
isn’t it? A. —I didn’t say so. 

Q. — Wasn’t that substantial^ 7 what you said? I understood 3*011 
to sa3*, that, among his friends, his reputation was good, and among 
his enemies it was bad. A. —I said his reputation among his friends 

4 

would be good, and among his enemies would be bad, as I believe it. 

Q. —Now, sir, I ask you if 30U won’t answer the question, what 
his general reputation is. You sa3*, now, it is good among some, and 
bad among others. Won’t you be kind enough to state his general 
reputation? A. — I made the reply that I didn’t count his friends 
and enemies. 

Q. — So that 3*ou cannot tell which predominates? A. —He ran 
for sheriff recently on the independent ticket after he had withdrawn 


/ 


448 HEARING — JOSEPH M. DAY. [March, 

from the canvass, and came within seventy 7 ( 70 ) votes of defeating 
the regular Republican nominee. That is the way he stands in the 
county. 


JOSEPH M. DAY (the Respondent.) Sivorn. 

[Testimony taken in 1881.] 

Q. (By Mr. Burdett.) —What is your full name, Judge Day? 
A. —Joseph M. Day. 

Q. —And where do you reside? A. —Barnstable. 

Q. — IIow long have you resided in Barnstable ? A. — Since 
October, 1850 . I think it is since the month of October, 1850 . 

Q. — How long have you been judge of probate for that county? 
A. — Since June or July, 1858 . 

Q. —Where have the probate courts been held in that county since 
your incumbency of the office? I don’t ask for every place ; but has 
it been held in one place, or more than one place? A. —Oh, no, sir ! 
in a number of places. There were a certain number of courts held 
regularly in the village of Barnstable ; and twice a year we have gone 
through the Cape. 

Q. — How many times do you hold court in Falmouth? A. — 
Once a year. 

Q. — And what is the time fixed by statute for holding court in 
Falmouth? A. — The third Tuesday of November. 

Q. — How long has that been the law? A. — I cannot tell you, 
sir. 

Q. — For a number of years? A. —Yes, several years. I think 
there was an alteration in the time; but just when it took place I 
cannot tell you now. 

Q. —How is it in your probate courts, judge, in regard to there 
being at any time of day more or less business than at other times? 
A. — Since the building of the railroad through the Cape, the courts 
at Barnstable have been very much fuller than in former years. In¬ 
deed, a very large portion of the business of the entire Cape is done 
at the Barnstable courts. I think Harwich is the only place where 
there are large courts held, excepting in the village of Barnstable. 

Q. — How is it about the trains that bring parties to, and take 
them from, the court in Barnstable? A .—Well, as has been stated 
by the witnesses, those that come up from the Cape come up on the 
seven o’clock train. 

Q .—In the morning? A. —In the morning, and want to go 
back on the half-past eleven train. Those parties having business in 
court coming from the westward come down on that eleven or half¬ 
past eleven train, and formerly wanted to go back by the half-past 


1882.] 


SENATE —No. 150. 


449 


two train, I think it was ; otherwise they would be obliged to stay 
over night. 

Q .—That arrangement of the trains has what effect, if any, upon 
the business of the court? A. — It drives it all right into a very 
few hours ; or it has till the arrangement by which the afternoon 
train from down the Cape for Boston passes by Barnstable at four 
o’clock, instead of twenty minutes or half-past two, as formerly. 

Q. — Is there an}^ peculiar necessit}^ for expediting business in 
your court, or not? A. —Why, yes, sir: it results, however, from 
the way in which the trains are run. Parties come there, not in car¬ 
riages ; and if they can’t get their business done so as to go home by 
train, why, they must remain over night, or hire a carriage to get 
home. 

Q. —I don’t know that yon will consider 3*ourself a proper man to 
answer this question, judge, but I will put it to } T ou. What is your 
general manner of doing business, so far as 3*011 can state it }*ourself? 
A. — I do it as well as I know how, sir; and I try to do it promptly. 
I try to be courteous to all, and kind to all. 

Q. — As to whether or not 3 f ou have a desire to do the business 
expeditious^, or are inclined to let it lag and do itself? A .—I 
don’t mean any business shall lag in my court, sir. 

Q. — Now, I will read to 3*011 one of the specifications, judge, 
which have been filed against you, and ask you to answer it. It is 
the tenth, and I will put it in the form of a question. Have 3*ou 
been in the habit of treating with great discourtesy and rudeness 
persons doing business in your court? A. —I never have. 

Q .—The ninth specification I will put in the same form. Have 
3*ou been in the habit of using coarse and harsh language to suitors in 
your court? A. — I never have. I have used language, at times, 
to parties in my court, they may have considered harsh; but it has 
only been in cases where it seemed to me it was necessary and 
proper. I meant it should be emphatic, that is all. 

Q. — Have you spoken in ways to parties in your court that the 
parties themselves might have called abrupt and decisive? A. —I 
should think so: I should think they might have called it decisive, 
sometimes, at an3* rate. 

Q. —Now we will go to another subject. The eighth specification 
I will put in the form of a question. Have 3 7 ou been in the habit of 
excessive and improper use of intoxicating liquors? A. — Never, in 
m3* life. 

Q. —Have 3’ou been in the habit, or have 3*011 ever used intoxicat¬ 
ing liquors? A. —Yes, sir. 

Q. — Have 3*ou ever used them habitually? A. —No, sir. 

Q. — Have 3*ou ever made a habit of using them excessive^ or 
improper^*? A. —Never, sir. 


450 


HEARING —JOSEPH M. DAY. [March, 


Q. — Have you ever taken intoxicating liquors before holding pro¬ 
bate court? A. —Never in my life have I taken a drop of liquor 
before going into probate court. 

Q. — IIow has your use of intoxicating liquors for the past few 
years compared with the use in former years? A. —For the past 
few years, sir, I have scarcely used any. 

Q.—And why? A. —Well, sir, because of some physical disa¬ 
bilities. I thought it was quite possible that it might be better to 
leave off stimulants, and I left off intoxicating liquors and smoking; 
and, because, also, being of very full habits, I felt the blood rush 
through my veins fast enough without the aid of stimulants. 

Q. (Ify the Chairman.) —When did you say 3 T ou left it off, Judge 
Day? A. — I cannot tell 3 T ou, sir: some few years since. I would 
say this, as the Chairman asks the time, —there is one definite time 
in m3’ mind that I have. From the seventeenth or twentieth da3 r of 
June, 1879 , to the latter part of that month, 1880 , I don’t believe I 
took as much as a glass of lager or cider. Those are two definite 
points in my mind. From about that time in 1880 for — well, I think 
to the fifteenth da3 T of December — I took a ver3 T little liquor, — very 
little indeed. On the fifteenth da3 r of December I stopped that; 
and, from that time to this, I have not taken as much as a glass of 
lager or cider. 

Q. (By Mr. Burdett.) — Now, in reference to 3’our service in the 
arm3 T , Judge Day. In the first place, .what was 3’our rank in the 
army? A. — I was major of the Fortieth Massachusetts. 

Q. —Did you contract any disease in the service? A. — Well, 
sir, I contracted, —3 r es, sir, I did. I suppose it is a disease. 

Q. —What was it? A .—The physicians tell me that it is what 
is called synovitis. It is a drying-up of the lubricating substance of 
the joints, which makes it impossible for me to walk any great dis¬ 
tance, or to stand a great while. And, if it is proper to say, I may 
sa3 T that, from the month of September, 1863 , when I was mustered 
out of the service, to this da3’, there has scarce^ been one day in 
which I have not been in pain. 

Q . — Were 3'ou affected with malaria during your service in the 
army? A. — Yes, sir. It was the result, as the physicians informed 
me, of malaria and of the exceeding hard work that our regiment 
did before going down to Folly Island, — hard work and exposure. 

Q. — Has this result of your service entered into the consideration 
of an absolute giving up of the use of intoxicating liquors in any 
form or to any extent? A. — Not the absolute giving up, sir. I 
never have absolutely given up ; that is to say, if I should choose 
to-morrow to drink, I should feel at perfect liberty to do so. 

Q. — I do not understand, then, that either 3’ou are a prohibitionist 


1882.] 


SENATE —No. 150. 


451 


in principle ora teetotaller in practice, or pretend to be? A .—I 
don’t pretend to be, sir. 

Q* — That, if you want a glass of wine, you will drink it if you see 
fit? A. —I don’t want it, sir ; and therefore I don’t drink it. If I 
wanted it, I should drink it. 

Q- — Now we will take up some specific instances under this 
general allegation. Do you remember your visits to Falmouth for 
the purpose of holding probate courts for the last few 3 r ears? A. — 
Very well, sir. 

Q. —Last November, — that is, November, 1880 , — who went 
with 3'ou, if anybody? A. —Mr. Tliacher. 

Q • — And where did } t ou stop? A. —Stopped at Mrs. Davis’s in 
November. 

Q -—Take a }mar ago last November: did Mr. Thacher go with 
you that time? A. —He did not, sir. 

Q. —And where did you stop? A. —I stopped at Mr. Davis’s. 
He was then alive. 

Q. — November, 1878 ? Did Mr. Thaclier go with you, or not? 
A. —Yes, sir. 

Q. —Did you stop at Mrs. Davis’s that time? A. —I don’t 
remember, sir, I am sure. I know there was one time when I stopped 
at Mrs. Davis’s, though I held court down to the Succanesset House. 
Subsequently the count}^ commissioners, or one of them, — the 
county commissioners, I think, — directed us to go to the Davis 
House ; and we went there. 

Q. — Now, have you stopped at Mr. Swift’s hotel? A. —I have, 
sir. 

Q. — In previous years to these which we have just mentioned? 
A. — Yes, sir. 

Q .—Do 3’ou remember 3 T our trip to Falmouth from Barnstable, 
November, 1879 ? A. — I do, sir. 

Q. —By what conve3 T ance did 3’ou go from one place to the other? 
A. —I went bv the cars from Barnstable to Cohasset Narrows, or 
Buzzard's Bay, in the afternoon. Then I w'aited for the Boston train 
that went to Wood’s Holl, and took that train for Falmouth. 

Q. — And what time did that arrive at Cohasset Narrows? A. — 
M3 r impression is, that it is ten or fifteen minutes past six, sir. I 
cannot remember exactly ; but I think somewhere about that time. 

Q .—Now, did your son and wife go to Falmouth in November, 
1879 , at the same time 3-011 did? A. —The3 T did, sir. 

Q. — Did the3 r go in the train witli 3’ou ? A. — No, sir. 

Q. —How did they go? A. — They went-in a team from Barn¬ 
stable. 

Q. —Across the country? A. —Yes, sir: across the country ; or 


452 


HEARING — JOSEPH M. DAY. [March, 


I left them at home when I started, and I found them in Falmouth 
when I got there. 

Q. — Were they at Mrs. Baker’s hotel? A .—At Baker’s Hotel ; 
Mrs. Davis’s. 

Q. — Do you remember passing the evening there? A. — I do, 
sir. 

Q. — Do } t ou remember, after leaving Cohasset Narrows, going 
down to Falmouth, meeting Mr. Messer, the conductor of the train? 
A. — I do, sir. 

Q. — What part of the train was it you met him? A. — It was on 
the platform between the cars. 

Q. —What do you mean by “ between the cars ” ? Between what 
cars? A. —Between the passenger-car and the baggage-car, — what 
he called, I believe, the baggage and the smoking car. 

Q. —Do you remember, Judge Day, having any conversation with 
Mr. Messer? A. —I do, sir. 

Q. — And can y’ou state the substance of it? A. —Why', yes, sir. 
I think Mr. Messer stated the substance of it very well. 

Q. —Will y’ou repeat it as y’ou remember it? A. — I remember of 
his asking me if I had been to Parker’s, or the Parker House, I have 
forgotten which : I cannot say. 

Q .—Did you understand what he meant? A. — I did not, sir. 
The only place I associated with those words was the Parker House 
here in Boston, where I have staid all m3’ lifetime, or ever since the 
house was built; and when he asked me if I had been at Parker’s, or 
at the Parker House, the wonder to mv mind was what he was talking: 
about; for I could not possibly see the relation between his question 
and any answer that he expected me to give. It never occurred to 
me for a moment that there was a Parker House at Buzzard’s Bay r , or 
that there was a house kept b3 r a man by the name of Parker there ; 
for I ver3 T seldom go there. 

Q. —You know of the existence of such a place as Parker’s? A. 
— Why, certainly, I knew the man very well indeed. 

Q. —But you had not been stopping there at this time? A. — No, 
sir, I had not been there ; and when he asked me if I had been to 
Parker’s, or the Parker House, it did not occur to me for an instant 
what he meant. 

Q. —Did 3 T ou, or not, hesitate about answering? A. — Certainly’ 
I did, sir ; for I didn’t know what he meant. 

Q. —What were 3’ou doing, or attempting to do, at the time 3’ou 
had this conversation with Mr. Messer? A. — I was attempting to 
urinate there, and succeeded. 

Q. —And where were you standing at the time? A. —I was 
standing, sir, upon the platform, and attempting to urinate between 


1882.] 


SENATE —No. 150. 


458 


tlie platforms. I don’t know whether am* of the urine fell upon the 
platform, or not. It was pretty dark ; and I couldn’t tell about that, 
sir. 

Q ’—Why were you upon the platform rather than in the cars? 
- 4 - — Because, sir, when I can avoid it, I do not go into the urinals 
on those cars. 

Q- — Why not into the urinal of the smoking-car, for example ? 
A. — Because, sir, at times they are perfect^ filthy. 

Q • —Why not into the closet of the passenger-car? A. — Well, 
sir, I have not quite got to that point of indifference 3*et where I like 
to go into a place of that kind in the presence of ladies, that’s all. 

Q •—Judge Da} r , were 3*011 under the influence of liquor in any 
degree at the time that Mr. Messer met 3*011 on the platform and had 
this conversation? A. — Not the slightest, sir ; and for eight or nine 
months previous to that I hadn’t taken a drop of an3 T kind of liquor 
in the world. 

Q • — Now, judge, we will take the case of the allegation of exces¬ 
sive indulgence in drink upon the cars from Boston to the Cape, 
where 3*011 were seen with two ladies. I won’t ask you to state the 
names of the ladies ; but 3*011 miy state, in reference to that matter, 
whatever 3*011 have to sa3*. That is found on pp. 156 and 157 , pp. 
159 and 161 , pp. 162 and 163 . A. — Well, sir, upon that occasion 
I met in the cars, or saw in the cars, a lad3 r that I was acquainted 
with, with whose father and whose uncle I was acquainted ; and I 
ma3 T say that both the father and the uncle were amongst the most 
respectable of our Cape Cod citizens. The ladies were sitting on a 
seat together. The next seat to them was turned back, for one of 
them had her little daughter with her. The one I was acquainted with 
introduced me to the other one ; and, there being plenty of room, I 
passed into the seat that was turned back, and sat directty opposite 
the M3* I was introduced to. I observed something that struck me 
as being singular or peculiar in her appearance. She did not seem 
to notice what was going on, or to notice when I spoke to her; but I 
had never seen her before, and I supposed it was simply a personal 
peculiarity. B3 t and b3 T she put her hand down to her satchel, and 
took out a bottle of lager beer; and she said to me, “ Judge Da3 r , 
will 3*011 have a glass of lager,—just a glass of lager?” I said, 
“ Thank you, yes.” She was proceeding to open it, when I said, 
“ Let me open it for you.” I took the bottle, opened it, took a silver 
cup which she had, filled it, and passed it to her ; I filled it again, and 
passed it to the other lady ; I filled it again, and drank it ni3*self. 
And that was every* drop that was drunk while I was on that car. 
But in, it seemed to me, less than five minutes, the lad3* that sat 
opposite to me was evidently intoxicated. At that time, as I said, 


454 


HEARING —JOSEPH M. DAY. [March, 


I knew nothing whatever of her habits, — never had heard of them. 
She moved down somewhat in her seat, put her feet across between 
the seats to the railing, to the bar under the seat upon which I was 
sitting, and between my legs and the passage-way. In moving her 
body down, her knees came nearly across the whole distance between 
those two seats, and went off into a drunken doze. The young lady 
who was sitting upon the same seat with her seemed to cast a quick 
glance at me, as if to see whether I noticed the condition of her 
sister-in-law; and I tried as hard as I could to make her think I did 
not. I sat and talked with her, taking no notice whatever of the 
other lady. It was impossible for me to get out without demon¬ 
strating to that whole car full of passengers that that "woman was 
intoxicated. I did not know what to do excepting to do as I did, 
— sit there until she came out of the sleep, raised herself upon the 
seat, when I got up, and went out. That is the whole of that trans¬ 
action. 

Q. —During that time, Judge Day, did you get up, and go back¬ 
wards and forwards to get water? A. —I did not, sir : there was no 
place in the car to get water from. 

Q. — Were 3^011 under the influence, in an} T degree, of intoxicating 
liquor at that time? A. — No, sir. 

Q. — We will pass to another class of subjects, and take, in the 
first place, the case which is set out in the second part of the first 
allegation, which reads as follows : — 

“ He has been retained, and has acted as counsel against Nathan Crocker, an 
administrator appointed in the said probate court, and by the said judge. In 
both of said cases said judge was counsel for and against said administrators in 
their capacity as such.” 

The other case referred to being that of acting as counsel for 
Eleazer Nickerson. Will 3 t ou state whether 3 r ou remember that pro¬ 
ceeding? A. — Well, which one, sir? 

Q . — The Crocker case is the one I call 3’our attention to. A. — 
I do, sir. 

Q •—What was it? A .—A petition by Nathan Crocker, admin¬ 
istrator for Nathan Crocker, deceased, for an abatement of taxes. A 
petition had first been referred to the assessors, and no evidence intro¬ 
duced before the assessors on the subject: they had passed an order 
refusing to abate the taxes. Thereupon complaint was made to 
the county commissioners; and the assessors or the selectmen — for 
they are the same persons in the town of Barnstable — came to me 
in relation to the matter, saying to me that Mr. King was coming 
down to Barnstable to have a hearing, I believe, the day or two days 
after, — soihething of that kind, I do not remember just the number of 
days. I said to the assessors that it was impossible — 


1882.] 


SENATE —No. 150. 


455 


Mr. King. Is it worth while to go into that? 

The Chairman. That conversation is not competent. 

Mr. Burdett. Just state what 3^011 did. 

The Witness. As the result of my interview with the assessors, I 
went before the county commissioners. I went first to the county 
commissioners before the day appointed for the hearing, to ask if any 
complaint had been filed there, and found that none had been filed. 
The day it was filed there, two of the assessors came to me ; and, as 
the result of what the}^ said to me, I went before the county commis¬ 
sioners, and asked the county commissioners not to hear that matter 
until notice could be given to the town of Barnstable. I stated to 
them that I was there for that purpose, and for that purpose alone, — 
to ask them not to hear that matter until notice could be given to the 
town. They finally concluded not to do it, and that was the whole 
of it. 

Q. —Did you act in that matter after that? A. —No, sir. 

Q. — Did you make any charge for the services rendered? A. — 
No, sir. 

Q. — Did you present any bill? A. —No, sir. 

Q. — Did you ever ask for any pay ? A. — No, sir. 

Q. — And that was all you did about the matter from beginning 
to end? A. — That was all, sir. 

Q. — I want to ask you now, Judge Day, whether you have ex¬ 
amined the statute which I will read, being sect. 6 of chap. 119 of 
the General Statutes. 

“No judge shall be retained or employed as counsel or attorney either in or 
out of court, in any suit or matter which may depend on, or in any way relate 
to, a sentence, decision, warrant, order, or decree made or passed by him; nor 
for or against an executor, administrator, or guardian appointed within liis 
jurisdiction, in a suit brought by or against the executor, administrator, or 
guardian, as such; nor in a suit relating to the official conduct of such party; 
nor for or against a debtor, creditor, or assignee, in a cause or matter arising 
out of, or connected with, any proceedings before him; nor in an appeal in such 
cause or matter.” 

A. — Do you ask me if I have examined that? 

Q. — Yes, sir. A. — I have, sir. 

Q. —At the time you appeared before the county commissioners in 
the capacity you have just stated, did you consider you were acting 
in violation of that statute? A. — Not at all, sir; or I should not 
have done what I did. 

Q. — At this moment are you of the opinion that you violated 
either the letter or the spirit of that statute in acting in that case? 
A. —Please state your question again. 

Q. — l say, at this moment are you of the opinion, that, in acting 


456 


HEARING —JOSEPH M. DAY. [March, 


in the capacity which has just been stated, you were acting in viola¬ 
tion of this section? A. — I am of the opinion that I was not, and 
I will give my reasons if necessary. 

Q. — I do not ask }’ou for vour reasons now. Did you appear there 
from any corrupt motive? A. — Why, no, sir. 

Q. — Did you appear there for the purpose of gain in violation of 
the statute? A. — Certainly not, sir. 

Q. —Was 3 T our intention to violate any law at the time you did it? 
A. — No, sir. 

Q. — Now let us take the case of the libel in admiralty against the 
schooner “ Benjamin English.” Do } r ou remember that case? A. — 
I do, sir. 

Q .—That was what sort of a proceeding? A. —It was a pro¬ 
ceeding in rem against the schooner “Benjamin English” for sea¬ 
men’s wages. 

Q. —And brought in what court? A. —The United States Court. 

Q. — Who was the claimant in the case? A. — The administrator 
of the estate of Seth T. Nickerson, — Eleazer Nickerson. 

Q. — And did 3'ou appear in the case in the United States Court? 
A. — I did, sir. 

Q. — Do you remember that any remarks were made at the time 
b} 7- counsel, or by Judge Lowell, who presided? A .—Both: yes, 
sir. 

Q. — Was there objection made on the part of the counsel to 3 T our 
acting in that case? A. — Yes, sir. 

Q. — Can 3 T ou state the substance, as 3’ou understood it, of what 
fell from the lips of the judge at that time? 

The Witness. Well, sir, the substance of what Judge Lowell said 
is this: that it was a matter he had nothing whatever to do with; 
that it was not for him to sa3 r that I should not appear there as coun¬ 
sel for the claimant; that, whatever the laws of the Commonwealth of 
Massachusetts might be, that was a matter for me to consider, not 
for him. 

Q. — Did 3*011 understand him to express any opinion on 3 T our right 
to appear in that case ? A. — M3 t right ? 

Q. — Under the statutes to appear in that case? A. — Certainly 
not, sir; not a word of that sort. 

Q. — Have you considered your action in that case with reference 
to the section of the General Statutes which I have just read? A. — 
I have, sir. 

Q. —What was 3'our opinion at that time, under that statute, in 
regard to acting at that time? A. — My opinion was, I had a per¬ 
fect right to act in that case, and is so still; and, with reference to 
that, if necessaiy, I will give m3 r reasons. 


1882.] 


SENATE — No. 150. 


457 


Mr. Burdett. That, I suppose, the Committee will hardly ask 
for. Of course, if it is desired by anybody, Judge Day can state his 
reasons for interpreting the law as he did. 

Q • — What is 3'our opinion now as to the right to appear in that 
case? 

The Chairman. He has already said that ho thinks he had the 
right. He has answered that question. 

Q •—Judge Da}', did you make any concealment of the fact that 
you appeared in that case for anybody? A. — No, sir. 

Q • — Did you make a charge for your services in that case? A. — 
Wh} T , yes, sir. 

Q • — What was the charge? A. —Thirty-five dollars. 

Q •—Which was afterwards allowed, was it not? A. —Yes, sir, 
and paid to me. v 

Q. — This estate, judge, to which this schooner “ Benjamin Eng¬ 
lish” belonged, was it found to be solvent or insolvent, do }’ou 
remember? A. — It was insolvent, sir. 

The Chairman. The record has been put in showing it to be insol¬ 
vent, and the order of distribution. 

Q. —And the order of distribution was made after the report of 
the commissioners appointed by the court to pass upon the claims? 
A. —Oh, 3’es, sir ! it could not have been made without. 

Q. — Did 3'ou present the claim to the commissioners? A. — I did 
not, sir; that is, sir, I have no recollection whatever of going before 
the commissioners, or ever seeing them at any meeting which they 
held. 

Q .— How long does the report of the commissioners have to 
remain on file at the probate office? A. — Thirty days, sir. 

Q. — And for what purpose ? A. — In order that aity party may 
appeal. 

Q. — Do you know of an}' appeals from the decision of the com¬ 
missioners in this case? A. —There were none, sir. 

Q. — To whom does the appeal lie? A. —To the Superior Court. 

Q. — And there was none in this case ? A. — No, sir. 

Q. — I will now refer, Judge Day, to the case of Mary C. Paddock, 
whose testimony is on p. 153 . A . — I think there is a document put 
in evidence here with reference to Mary C. Paddock. I would like 
to have that, sir. [The report was handed to the witness.] 

Q. — You may state, Judge Day, any thing you may like in rela¬ 
tion to that. 

The Chairman [after a pause]. Proceed, if you please. He said 
you might state an}* thing you liked in relation to that. 

The Witness. I beg pardon, but I did not hear him. It appears 
that Barnabas C. Howes applies to me to make complaint that - 



458 


HEARING — JOSEPH M. DAY. 


[March, 


Paddock was an insane person. All of this paper is in m3' hand¬ 
writing, as far as it was possible for me to do the business for these 
people. 

Q. —What paper are 3*011 referring to? A. — The application and 
the certificate of one of the selectmen, and a certain amount of the 
writing upon the next page, which contains a long list of questions 
which arc to be answered ly those who seek to send a party to a 
lunatic hospital. I remember of Miss Paddock's coming to the office 
and bringing this paper, with the sworn certificate of Dr. Gould and 
Dr. Lord, and desiring from me a warrant to take her sister to the 
lunatic hospital at Taunton. I told her I could not do so,—that 
the law would not permit me to do so. She said she had studied the 
statutes care ful I3*, and she knew I could do it if I pleased, and that 
she was told b3* the physician that this was all that was necessaiy, for 
me to grant a certificate to take her sister to the hospital. I said to 
her that I could not grant a certificate, in aii3* case, without first noti¬ 
fying the party alleged to be insane. She refused to have her sister 
notified of the proceeding. It ma3’ have been veiy prudent that she 
should not, — I don’t know about that; but she refused to have her 
sister notified ; and I said to her that I could not and would not, upon 
this paper, grant a warrant to take her sister to Taunton. She 
seemed, I thought, very angry with me. I thought I was the one that 

was treated rudely. 

%/ 

Q. —Did you treat her with am* rudeness, or in a manner at all 
ungcntlemanty, in your opinion? A. — Not to 1113* knowledge. I do 
not think I discussed the question whether or not I knew my’duty a 
great while with her; but I did not mean to be discourteous. 

Q. —She informed you that she had studied the statutes carefulty, 
and she knew that was what 3*011 could do? A. —Yes, sir. 

Q. — What do you say in relation to the certificate of physicians 
which they presented? A. — I say, sir, that I am not permitted — 
I might say that this matter of physicians’ certificates with reference 
to insane people has given me more trouble in the county of Barn¬ 
stable than any thing else. They cannot seem to understand that 
when they get a sworn certificate that a person is insane, that there is 
any reason whatever in obliging them to come before the judge of 
probate, and give their testimony also. The law requires the testi¬ 
mony as well as the certificates of the physicians, and I have required 
it, —I cannot say in all cases ; but, unless there was some veiy power¬ 
ful reason to the contrary, I have required, not only their certificate, 
but their evidence, as required by the statute. 

Mr. Buiidett. The statute, as I understand it, is that of the year 
18 G 2 , chap. 223 , sects. 3 and 4 , which provide,— 


1882.] 


SENATE —No. 150. 


459 


“ Sect. 3. Any of tlie judges of the supreme, judicial, superior, and pro¬ 
bate courts, and, in the city of Boston, of the police court, may commit to 
either of the State lunatic hospitals any insane person, who, in iheir opinion, is 
a proper subject for its treatment or custody; but in all cases the evidence and 
certificate of at least two respectable physicians shall be required to establish 
the fact of insanity. In all cases the judge shall certify in what place the 
lunatic resided at the time of his commitment; or, if ordered to be confined by 
any court, the judge shall certify in what place the lunatic resided at the time 
of the arrest in pursuance of which he was held to answer before such court; 
and such certificate shall, for the purposes of this act, be conclusive evidenccof 
his residence. 

“Sect. 4. Any person applying for the commitment or for the admission 
of a lunatic to a State lunatic hospital, under the provisions of this act, shall 
first give notice in writing to the mayor, or one or more of the selectmen, of the 
place where the lunatic resides, of his intention to make such application; and 
satisfactory evidence that such notice has been given shall be produced to the 
judge in cases of commitment, and to the trustees upon applications for admis¬ 
sion.” 

The fifth section provides for a statement to be filed with the judge, 
and various other provisions. 

Q. — Is this the statute to which 3*011 have referred? A. —Yes, 
sir. 

Q. — In relation to the evidence, as well as to the certificate of the 
ph}*sicians? A. — Yes, sir. 

Q. —Have I read that portion of it? A. —Yes, sir, 3*011 have 
read that portion of it. 

Q. — Now, Judge Da3*, let us go to one other matter. I mean to 
put these matters together. I have taken some pains to arrange 
them, and very likel3* ma3* have omitted some that belonged to a cer¬ 
tain class, and shall bring them up hereafter. I am now proceeding 
to inquire concerning the sixth allegation of the specification filed by 
the petitioners, that, — 

“He has been in the practice and habit of acting as counsel for, and advising 
with, executors, administrators, and guardians, and of charging and receiving 
fees therefor.” 

What is the truth in regard to that matter, Judge Da3 r ? A. — 
Never in m3* life, excepting in one case where I appeared as counsel, 
or prompter, rather, of the administrator of the estate of Seth T. 
Nickerson. 

Q. — Have you advised executors, administrators, and guardians? 
and, if so, to what extent? A. — Well, I should say there were 
precious few of them I had not advised. 

Q. — Did you take fees or make charges, or demand payment from 
them ? A. — Never, sir. 

Q. —Now let us pass to some instances. The first — which, by the 
wa3 r , I consider of no earthly consequence, but, as long as it has 


460 


HEARING — JOSEPH M. DAY. [March, 


been mentioned, had better receive Judge Day’s statement — is the 
insurance money collected for Mrs. Alice Crowell. Will 3*011 state 
what you know in reference to that matter, whether, or not, you ever 
had any conference with Mrs. Crowell either after or before the col¬ 
lection of the money, what services you rendered, and any thing else 
that is material to this inquiry? A. — Mrs. Crowell came to my 
office, and I talked with her upon the subject. She is mistaken in 
supposing that she did not talk with me upon that subject. In con¬ 
sequence of the conference between her and myself, I came to Boston 
to see Mr. Henry Crocker, who was president of the life-insurance 
company from which her husband was expecting a policy of insur¬ 
ance at the time he was drowned. I had several interviews with Mr. 
Crocker, came to Boston twice, I think at Mr. Crocker’s suggestion, 
for the purpose of meeting the directors of the company. But I had 
no meeting with the directors. The business was done, I think, 
entirely with Mr. Henry Crocker, the president. After quite a deal 
of negotiation and talk, I finally said to Mr. Crocker, that, if the corn- 
pan}’ would make Mrs. Crowell a present, I would write an article for 
the newspaper to be published there in the count} 7 of Barnstable, to 
help them, if possible, in business there; and any thing that laid in 
my power I would do towards directing anybody who wanted insur¬ 
ance in a life office to that company. The company concluded to 
make her that present of five hundred dollars. I wrote the article, 
and it w r as published : and I charged Mrs. Crowell fifty dollars. I 
told her I wanted fifty dollars ; for I had paid out about twenty-five 
dollars for expenses, and I thought I ought to have twenty-five dol¬ 
lars for my services. There was not a word said about the expenses 
of court. The word was not used. It never Avas in court. She is 
mistaken about that. 

Q. —What would your fares have been for this coming to Boston 
and returning twice? A. — Why, they would have been four dollars 
and forty cents going and coming, each trip, — tAvo dollars and 
twenty cents ; four times two dollars and twenty cents. 

Q. — How much time did you spend in Boston at any one time in 
relation to this matter? A. — I came to Boston twice, I think, ex¬ 
pecting to meet the directors of the company. I would come up in 
the afternoon at tAvo o’clock at that time, and I did not go home, of 
course, until the afternoon of the next day: so practically it Avas 
Iavo days. Then, there were other times Avhen I called upon Mr. 
Crocker ; but those Avere times when I Avas not here in the city espe¬ 
cially for that matter. I should think I had a half-dozen interviews 
with Mr. Crocker before the matter Avas consummated. 

Q. — Take the instance of Mr. Joseph Cummings, Avho in 1858 
paid you fh r e dollars for advice. The testimony will be found upon 


1882.] 


SENATE —No. 150. 


461 


PP. 02 and 94 of the printed report. A. — That, sir, was,.I think, 
about five months after I was appointed judge of probate. I have 
no recollection upon the subject, except that it was in no way con¬ 
nected with the duties of the executors. 

Q. — Supposing it had been a question in regard to real estate, —■ 
the disposition of real estate, — under the law, is that a matter with 
which you would have, had any concern? A. —No, sir, not at all. 

Q • —What is that? A. — No, sir, not at all. 

Q • — I mean, concern as judge of probate, of course? A. — It 
would be a mere question of title in the estate of Mr. Cummings. 
He was a man very well off. 

Q • — Do you know whether any account was ever presented on the 
estate to which this will related? A. — None has ever been pre¬ 
sented, sir. There are no papers in the case excepting the will and 
the decree and the bond. 

Q. — And it has already appeared in evidence that this will was 
•allowed by Judge Day’s predecessor. That was in 1858 . Now, in 
187 G, there is a statement that Mr. David K. Aiken paid you ten 
dollars. That is found on pp. 88 to 92 . Do you remember any 
thing about the circumstances of that case? A. — I do, sir. 

Q. —Will you state what they are? A. — Mr. Aiken came to 
me for advice: I gave it to him, and he paid me ten dollars for it. 

Q. —Was he at that time administrator or executor? A. —He 
was not, sir. Subsequent^ he was appointed administrator. And 
subsequently he presented, either in probate court or before probate 
court, —I cannot tell which, — he showed me the account, in which 
I saw a credit to the administrator of ten dollars paid to J. M. Day 
for advice. I said to him, “Mr. Aiken, what does this mean? I 
have never given any advice to any administrator.” “Well,” he 
says, “ the advice 3*011 gave me was for the benefit of,” — whoever 
the party was : I don’t remember. 

Mr. Burdett. The daughter of Mrs. Kelley. 

The Witness. And he expected her to pay for it. And I said, 
“ Mr. Aiken, as between 3*011 and she, 3*011 may put your accounts in 
such shape as 3'ou and she agree to: but m3* name must not appear 
there as giving advice to an administrator, for I have given none to 
an administrator.” 

Q. —You gave this advice to Mr. Aiken in what capacity? A. — 
WI13’, as to an3 r one who came and asked me for a piece of advice: 
just as 3 T ou consider an3 r question. 

Q. — Do you know when he paid 3*011 for it? A. —Yes, sir. 

Q. — Was it before or after the allowance of the account? A. — 
It was paid forthwith. Mr. Aiken is not a man who allows bills to 
stand. 


462 


HEARING —JOSEPH M. DAY. [March, 


Q.—The service was rendered before he was appointed adminis¬ 
trator of the estate? A. —Yes, sir. 

Mr. Burdett. I would like to call attention to the testimony of 
Mr. Aiken, upon pp. 88 and 90 , because it very clearly appears from 
his testimony just why — 

The Witness. Pardon me, sir. I won’t say it was before he was 
appointed administrator: I will say it was before he presented the 
account to me. About the other date, I cannot say. 

Mr. Burdett. The answer of the witness, on the bottom of p. 88, 
is the material one to which I wish to call attention ; in which he 
states he sought advice for it. 

Q. —Judge Da}', in making any request to the administrator to 
make that correction in his accounts, had you any other than an 
honest motive? A. —Of course not, sir. I only wanted my name 
stricken out of it, for it did not belong there : that was all. And, as 
Mr. Aiken desired to charge that to whoever was going to receive the 
estate, why, if that person was satisfied, I had no occasion to find 
fault. 

Q. — Did you consider that in doing that you were violating any 
law? A. —Any what, sir? 

Q. —Any law? A. — Why, no, sir. I do not see that anybody 
could so consider it. 

Q,. —I think that is all in regard to that, judge, unless you desire 
to add something. A. —I have nothing, sir. 

Q. —Now let us take the case of Young v. Young, which is made 
the subject of express allegation in the specifications numbered five, 
which reads as follows : — 

“ He sat and acted as judge in the matter of Reuben Young v. Enos N. 
Young, which was a proceeding for the partition of real estate brought in said 
probate court, being interested in said estate as counsel for the respondents.” 

Were you interested in said case as counsel for the respondents 
when you sat in the matter of Reuben Young v. Enos N. Young? 
A. —I was not, sir. 

% 

Q .—Will you explain what the facts in the case are? A. —As 
near as I can, sir, I will. I think that was the first case in which 
partition was asked for in probate court, in the county of Barnstable, 
in connection with an estate not in course of settlement there. Some 
time after the petition was filed in the office, and notice had gone out 
for it, I received a communication from the other parties interested, 
claiming that Mr. Reuben Young did not own in the proportion that 
he claimed to in the petition. When Mr. Hutchinson came to Barn¬ 
stable, I told him that there was a dispute over the title to that 
real estate ; there was a contest as to the shares and proportions 


1882] 


SENATE —No. 150. 


463 


in which the parties owned, and that I could not take jurisdiction 
of the case : I had no right to. I told him also there was trouble 
also as to the service, — that it had not been served as required by 
law. Mr. Hutchinson — I cannot give his language, but he seemed 
to be quite persistent that I should treat it like a case of default 
in the Superior Court; that, because the party had not appeared 
there personally to file any plea or objection to the proceedings, I 
should treat it as a case of default, and allow the commission to go 
out. I declined to do so. I did not so understand my duty. These 
proceedings in relation to partition in probate court have been always 
quite informal until — I cannot tell how many years. They have not 
been in the habit of describing property at all. If they desired the 
partition, the } 7 simply came in, and asked for the partition of certain 
of the real estate of All. 

Q. —That is the usual proceeding, is it not, ordinarily? A .— 
Well, sometimes it is, and sometimes it is not; but this is the form 
in which the petitions were ordinarily brought in the probate court 
some years ago. I think the occasion of the quarrel between Mr. 
King and myself was my refusal to permit a petition to be acted on 
in the probate court because the real estate was not described. There 
was also a claim on one side and the other, that the parties did not 
own as the}’ supposed the } 7 did. And from that day to this, I think, 
Mr. King and myself have not spoken, except in relation to business 
matters. 

Q. — Now, in relation to this matter of Young v. Young, where 
was the case taken after you refused to take jurisdiction of it? A. — 
To the Superior Court. 

Q. — And did you appear in the Superior Court as counsel? A. — 

I did, sir. • * 

Q. — And I think I have already asked you whether you were 
counsel, in any sense or to any extent, where the case was pending 
before you ? A. — I was not, sir. 

Mr. Burdett. I desire to call the Committee’s attention to chap. 
121 of the Acts of the year 1869 , which provides that— 

“The probate court may make partition of lands held by joint tenants, 
copartners, or tenants in common, when the shares of the respective parties are 
not in dispute between them in like manner, and by like proceedings, as said 
court may now make partition of the real estate of a deceased person among 
his heirs and devisees.” 

And also to call attention in the same connection to the General 
Statutes, chap. 136 , sect. 60 , which provides, — 

“ No partition shall be made by the probate court when the shares or propor¬ 
tions of the respective parties are in dispute between them, or appear to the 


464 


HEARING — JOSEPH M. DAY. [March, 


judge to be uncertain, depending upon the construction or effect of any devise 
or other conveyance, or upon other questions that he deems proper for the con¬ 
sideration of a jury and a court of common law.” 

The Witness. I desire to say that Mr. Hutchinson stated cor¬ 
rectly that he produced his deeds, and asked me to examine them to 
see that his title was as he stated ; and that I did decline to look at 
his deeds, saying to him that that was precisely the question that I 
had no right under the law to consider. 

Mr. Burdett. Chap. 13 G is the chapter referred to the Act of 
the 3’ear 1869 ; and that chapter of the General Statutes appears in 
the margin of that statute. 

Q. — As to whether the fact that there was a dispute between the 
joint tenants, copartners, or tenants in common, — whether j’ou re¬ 
quired that to be proved in a formal wa\ 7 , or not? A .— No, sir, I 
did not. I do not think it was the practice. However, I am free to 
say I think it ought to appear. 

Q. — Did it appear to you in any way that there was a dispute as 
to the right of any of the persons applying for partition, or interested 
in the partition? A. —Yes, sir. 

Q. Let us now, Judge Day, turn to the case of Harrison v. Swift, 
which is made the basis of the fourth allegation in the specifications : — 

“He acted as judge in the matter of Noble P. Swift, an insolvent debtor, 
said judge then, being counsel for Swift in a suit pending in another court, with 
the intent and for the purpose of aiding said Swift in such other suit.” 

Q. — Is that true? A. — It is not, sir. 

Q. — Did you sit as judge of insolvency in the matter of Noble P. 
Swift, an insolvent debtor? A. —I did. 

Q. — Were 3*011 at that time his counsel? A. —I had not been for 
months. 

Q . — What was the last time 3*011 acted as his counsel? A. — 
Before the Supreme Court in arguing the exceptions. That was in 
October, 1866 . 

Q . — The result of these exceptions was what? A. — The3 r were 
overruled. 

Q .—And, of course, that matter has been so fully put upon the 
record, it won’t be worth while to ask about it. Judge Day, did you 
have an3' relation with Mr. Swift as counsel or attorney after the 
argument of that case in the Supreme Court in October, 1866 ? A. — 
Yes, sir. 

Q • — How long after? A. —I have forgotten. My relation was 
that of an attorne3 T after his pa3% 

Q. —I mean, in relation to an3 r duties performed as counsel by 
you for him. A. —No, sir: none whatever. 


1882.] 


SENATE —No. 150. 


465 


Q* — Was that the end of }*our connection with the case of Harri¬ 
son v. Swift? A .— Yes, sir. 

Q‘ —Now, in relation to the appointment of assignees in that case, 
it has been put in evidence that one was not chosen by the creditors. 
IIow did they happen to be appointed? A. — I appointed him m} r - 
self. I did not at that time know the other assignee as well as I have 
known him since ; and I know that both Mr. Marston and Mr. King 
had some feeling in relation to the matter. I therefore appointed 
Mr. Ebenezer Bacon, one of the most honest and honorable men we 
have had upon the Cape, — so estimated, at any rate,—because I 
knew he would not permit any fraud to be committed by Mr. Swift 
if he could prevent it. 

Q- —Was the appointment of this latter gentleman upon the solici¬ 
tation of any of the creditors ? A .—No, sir. 

Q• — And upon whose motion was it done? A. —Upon nobody’s 
but my own. 

Q • — And the purpose of the appointment you have just stated? 
A. — I have, sir. 

Q. —Oh! I want to ask j’ou, Judge Day, what percentage, as 
nearly as you can recollect, the estate of Noble P. Swift paid to the 
creditors? A. — Well, sir, that must be very easy to fix somehow: 
I think, somewhere between fifty and sixt}’ cents. 

Q. — Is Mr. Thacher here ? A. —* No, sir. 

Q. —That would appear from the records? A. —Yes, sir. It 
was somewhere between fifty and sixty cents on the dollar. I desire 
to sa}’ this : that I never heard from any party any desire expressed 
to enter any appeal from the allowance of any claim, and that Mr. 
Ebenezer Bacon was instructed by me, that if there was a desire he 
should lend all the aid he could. 

The Chairman. Wait, please. Objection is made to that. I do 
not think j'our instructions to Mr. Bacon are competent. 

Q. —In relation to the third allegation, —- 

“ He has been privy to the taking of illegal fees by the register of said court, 
and has counselled and advised the same.” 

What have you to say to that? A. — I have to say that it is not 
true. 

Q. — Do 3'ou desire to state any thing further in relation to that 
matter? A. — Yes, sir : I desire to say that I have no recollection 
of any conversation with any register of probate upon the subject, 
excepting at one time when Mr. Thacher came to me, and asked me 
if, in making his returns to the Secretary of State, he ought to include 
therein this fee of one dollar which he took from parties who came to 
do business at the probate court, to take administratorship, guardian- 


466 


HEARING —JOSEPH M. DAY. [March, 


ship, executorship, etc. I said to him, No. I looked at the law, and 
I said to him, No : I did not think he was bound to return that as part 
of the fees which he received by virtue of his office as register of 
probate. That is all the advice I ever gave an} T body in relation to 
that. 

Q. — Did } t ou ever receive an} T thing, directly or indirectly, for the 
advice 3011 gave at that time? A. — Wh}’, no, sir. 

Q. (By Mr. Talbot.) —* Judge Day, have you any further state¬ 
ment, — I believe that is not excluded by the remark the Chairman 
has made, — have 3 T ou an3 T further statement 30U wish to add about 
3 T our going to Falmouth? A. —- Yes, sir: I desire to sa3 r that since 
the building of the Wood’s Holl branch of that railroad, I have never 
been at Falmouth, excepting to hold probate court, till perhaps a few 
weeks since, when we had a hearing in relation to a grade-crossing at 
Buzzard’s Ba3 T , when we all went to Falmouth and got dinner, and 
came back. 

Q. — That is all 3’ou wish to add to that? A. —* That is all, sir. 

Q. — I will call 3’our attention now to a piece of testimon3’ of the 
Attorney-General, to be found on p. 113 , in relation to the claims 
against the estate of Noble P. Swift in insolvency: “I did m3'self 
put together certain notes that were dated many months apart, and 
showed on the spot that the paper was torn apart, and the pieces 
matched together, as no man could make them, indicating, as we 
thought, that these notes were made at the same time. The3~ w r ere in 
the same handwriting; and for these reasons w r e objected.” Are 
those notes now within reach? A. — The3 T are, sir. 

Q. — Can you have them produced ? A. — I suppose so, sir, if 
the register is here. 

Mr. Talbot. Is Mr. Thacher here ? 

Mr. Thacher. Yes, sir. 

Mr. Talbot. Have you those notes, Mr. Thacher? 

Mr. Thacher. Yes, sir. 

Mr. Talbot. Will you be good enough to produce them? 

[Notes produced.] 

Mr. Talbot. I don’t consider this of an3 T great consequence ; but 
here is a piece of testimony put in here b3^ one of the highest legal 
officers of the Commonwealth, and we propose to show its incorrect¬ 
ness by referring to the original source of information upon that sub¬ 
ject. Be good enough to hand these to Judge Day. 

[Papers handed to Judge Da3 r b3 T the registrar.] 

Q. (By Mr. Talbot.) —How many notes were there produced? 
A. —Five, sir; the only notes that were proved against the estate of 
Noble P. Swift. 

Q. —Do they all appear to be in the same handwriting? A. — 


1882.] 


SENATE —No. 150. 


467 


No, sir. Ah, stop a minute! mainly, I should saj’, they were in the 
same handwriting. 

Q .—Mainly in the same handwriting? A. —Yes: there maybe 
two different. 

Q' —In whose handwriting do they appear to be? A. —I cannot 
tell you, sir, excepting, if you ask my opinion, I should say they 
were in the handwriting of Noble P. Swift; but I know nothing fur¬ 
ther about it. 

Q. —Was there any parole evidence offered to invalidate these 
notes? A. — Not a particle, sir. 

Mr. Talbot. These are the notes, which, according to the testi- 
mon}’ of Mr. Marston, the judge of probate was asked upon the 
inspection of the notes to reject; and we submit them now for the 
examination of the Committee. 

The Witness. I desire to sa} T a word in relation to one of these 
notes. One of these notes, — the George Nye note, — if my memory 
serves me right — I think I am wrong. I was thinking that one of 
these notes there was something in support of by a deposition offered. 
I think I am wrong from recollection. I desire to say that from these 
notes were proved in the case till this morning at eight o’clock, I never 
have seen one of these notes. 

Q. (By Mr. Talbot.)— In whose possession did j’ou find them 
this morning? A. —The register of insolvenc}’. I instructed him to 
bring these papers in order that I might have an opportunity at some 
time to examine them. I looked at them this morning in his pres¬ 
ence. 

Q .—Be good enough to look at these two notes, Judge Day, 
[Handing them to witness.] The corners here of these two notes are 
cbampered. Was your attention called to that at all as a suspicious 
circumstance? A. — No, sir. 

Q. —What is 3-our recollection, so far as you have any, of that 
cliampering of the corners? A. —I don’t recollect any thing about 
it, excepting — I have no distinct recollection about it. I have an 
impression that somebody cut these corners off to identify the notes ; 
but I really can’t remember. 

Q. —But that wasn’t a suspicious circumstance to which your 
attention was called ? A. —Not that I ever heard of. 

Mr. Talbot. These are the two most suspicious notes. 

Mr. King. I think all of them are. 

Q. —Judge Day, to which of these notes was your attention most 
sharply called, do you recollect? A. — I cannot tell you. 

[Notes examined by the Committee.] 

Q. — Judge Day, you heard the conversation of Mr. Snow, the 
senator from your district, in regard to the resale <?f the interest of 


468 


HEARING —JOSEPH M. DAY. 


[March, 


Ada Stevens, his ward. Will you state your connection with that 
transaction, as nearly as you can recollect? A. —Well, I can’t state 
the language of Mr. Snow when he came to me in the first place. I 
understood it to be substantially this : that he had found that Morse 
& Holmes had purchased a piece of cranberry-swamp up in Marsh- 
pee, or that vicinity, of the administrator of his ward’s mother’s 
estate ; that the}' had paid for it more than it was worth; that they 
had made extensive improvements upon it, — I don’t know whether 
he stated the amount or not, but he told me the}’ had made it into 
cranberry-bog; and that some way — through Mr. Gaboon, I think — 
they had found out that the administrator, in selling it, gave them no 
title, because of selling to a larger amount than his license authorized 
him to sell. I understood Mr. Snow to be desirous of doing what he 
thought to be an act of positive justice to Morse & Holmes ; and 
he asked me my views upon the subject. I didn’t understand him as 
asking my advice, for which I was to receive any pay. I didn’t 
answer him at that time ; I took some time to look over the matter, — 
look up the matter,—to think it over; and, when I again saw Mr. 
Snow upon the subject, it was some days afterwards. I told him my 
conclusion was, that Morse & Holmes, at any rate, if they had no 
remedy at law, had a remedy in equity, and that that would be expen¬ 
sive ; that it would take a 1 long time to get at tlm end of it; and that, 
if he could sell his ward’s interest over again, it would get the title 
straight at once without any expense, and there would be an end of 
the whole matter, — saying, at the same time, that he must take the 
risk of what came from that sale, for whatever sum these premises 
brought he would be obliged to account for as guardian of the ward’s 
interest. I knew nothing more of the matter till the license was 
granted. I don’t know but it was the day the license was granted, 
or the day after, that Mr. Snow came into the office ; and, in asking- 
some questions in relation to the sale of that property under the 
license, the fact came to my attention that it was Morse & Holmes 
who were moving in this matter through Mr. Cahoon, and not Mr. 
Snow, as I supposed, for the purpose of doing an act of justice. I 
then said to Mr. Snow, if Morse & Holmes were moving in this 
matter, if it was for their benefit that these proceedings were taken, 
if they were moving in the matter, they should pay me for my inves¬ 
tigation of the matter. I never had the thought of charging a cent 
for any advice that I gave, or any direction that I gave, to Mr. Snow 
in relation to his proceedings as guardian there; but, the moment I 
found that Morse & Holmes were at the bottom of this movement, 
I supposed it was another of the numerous cases in which people who 
have some connection in some way or other with property that is in or 
has gone through the probate court were endeavoring to get my 


1882.] 


SENATE —No. 150. 


469 


advice for nothing; and I thought the time I had spent in the inves¬ 
tigation of the matter, they ought to be willing to pay me for ; and I 
was paid ten dollars for it. If that was an error, it certainly was an 
error of judgment; for, if I ever supposed in my life I was doing an act 
for the purpose of bringing about what was absolute justice between 
parties, it was in m}’ action in that matter. Mr. Snow asked me in 
relation to the deed, as he states, whether it was correct in form, and, 
as I was going to say, in hundreds of cases of guardians and adminis¬ 
trators, or a great many,—perhaps that is putting it strong, — ask 
me the same question, whether the deeds are in proper form. Yes, I 
say to them, looking the deed over, I see it is in the general form of 
administrators’, executors’, or guardians’ deeds, as the case may be ; 
and I sa}’, Yes, that is all right. He asked me about the terms of 
selling, or whether the auctioneer should sa}’ any thing about improve¬ 
ments. I said, Certainly ; for it seemed to me very clear that Morse 
& Holmes had a claim for improvements ; and, if persons were to bu} T 
without reference to their claim, it seemed to me another injustice 
would be done equall}’ as great as to leave Morse & Holmes without 
a title, for they might pay the full value of the property ; and then, if 
the}’ undertook to do any thing with Morse & Holmes, Morse & 
Holmes might come in with their claim for improvement. 

Q. — Did you say any thing to Mr. Snow about pay, till you learned 
that the advice was in the interest of Morse & Holmes? A .— No, 
sir. 

Q. —And that they were going to pay all the bills? A. — No, 
sir. 

Q .—You spoke of this being a cranberry-bog, I think? A .— 
Yes, sir. 

Q. — And of Morse & Holmes having improved it in the way 
which the counsel on the other side spoke of, I think, as merely super¬ 
ficial ; do you know any thing about the improvement of cranberry- 
bogs? A .—I do, sir. 

Q. — Do you know the expense of it? A. —Only generally about 
that. I know what is done. 

Q. — State whatever you know about it. A. —The entire surface 
of the ground is taken off; the entire top soil is taken off. In some 
cases it is very expensive, more or less expensive in different cases. 
The entire surface is taken off, and, say, anywhere from four to six 
inches of sand put on in place of the old surface. This is done, and 
the fruit-vines are then set out. I can only state as an impression, 

_I think there are those here who can state better than I can about 

that, — that it costs somewhere in the vicinity of three hundred dol¬ 
lars an acre, perhaps, to make cranberry-bogs. 

The Witness. I desire to say a single word with reference to the 


470 


HEARING —JOSEPH M. DAY. [March, 


testimony of Mr. Thacher as to aiding me. I remember once when 
he did so. I don’t know but he may have done so several times ; but 
I remember once. I am sometimes very lame, and the carriages that 
we get into, at such a place as Falmouth, for instance, are not very 
easy for a very heavy man like myself to get into ; and Mr. Thacher 
has very kindly helped me sometimes, and I have been very much 
obliged to him. That is all. 

Q. (By Mr. Talbot.)— Judge Da}’, is there any thing else that 
you can recall now that you wish to testify to? A. —Nothing that I 
remember of; nothing occurs to me now. 

Cross-Examination. 

Q. (By Mr. King.) —Let me ask you, Judge Day, —I think you 
stated how long since you went to Barnstable? A. — Yes, sir. 

Q. — How many years is it? A. — It was in the fall of 1850 that 
I went there: I think in October, I think the 1 st of October, 1850 . 

Q. — Has your office been exclusively there ever since you went 
there? or have you had an office in Boston? That is what I want to 
call your attention to. A. — I had, for a time, an office in Boston, 
till a layman was elected register of probate, when I found my time 
was absolutely required there for the accommodation of the people of 
Barnstable Count}'; and I gave up my office in Boston. I was also 
in Boston during the time I was provost marshal of the Common¬ 
wealth during the war, and the latter part of the war. 

Q. — What years were you in Boston when your law-office was 
here? A. — Well, sir, I should think it was from 1871 or 1872 to 
1874 ; somewhere about there, I should think. I don’t remember 
distinctly, but I should think about there. 

Q. — I see that your name is in the directory as late as 1875 , and 
perhaps later. Let me call your attention definitely to that point, 
whether or not your office was not here as late as 1875 ? A. — I 
think not, sir. As late as 1875 ? 

Q. —Yes. A. —Well, I cannot tell, sir. I only know as soon as 
Mr. Thacher was elected register of probate, and I found that my 
presence in Barnstable was needed almost all the time, that I gave 
up my office in Boston, and went to Barnstable, whenever that was. 
1 cannot sav when it was. 

K/ 

Q. — You didn’t give up your office immediately upon that elec¬ 
tion, I understand ; not till you found you were needed there ? A. — 
I think so, sir. 

Q. — Your office was in Pemberton Square? A. — It was, sir : it 
was the same room with Mr. Gooch, counsel in this case. 

Q .—Well, are you able to speak with any degree of positiveness 
as to your office being in Pemberton Square during 1874 ? A. — I 


1882.] 


SENATE —No. 150. 


471 


cannot, sir, unless my attention is called to it. I should say, how¬ 
ever, that it was. 

Q‘ — Now let me ask you if you were counsel, more or less, for 
the Cape Cod and Old Colon} 7 road while } r ou were there during that 
time? A .—I wasn’t aware that I was ever counsel for that com¬ 
pany. 

Q. — I want to ask } r ou, when your office was here, whether } 7 ou 
came up upon a pass, or whether } 7 ou came up on a season-ticket, or 
how that was? A. — I cannot tell } r ou. 

Q • — Don’t 3 T ou recollect whether } r ou bought a season-ticket, or 
whether you came up on a pass ? A. — I do not, sir. 

Q. — No recollection about it? A. —‘I have not, sir. 

Q • —‘ Now I want to call } T our attention to the testimony of Mr. 
Messer, and to ask you whether, in the main, the testimony which he 
gave was correct as to the occurrence at Cohasset Narrows? A .— 
As to matters of fact, but entirely wrong as to conclusions. 

Q. (B3 7 Mr. King.) — You understood him, then, to state the facts 
correctly; but } t ou sa} 7 that his conclusions were entirety wrong? A. 
— Substantial!} 7 I think he stated the facts correctly. 

Q. (By Mr. King.) — Let me ask you what time the train up from 
the Cape, by which you went around to Falmouth, arrived at Cohas¬ 
set Narrows that afternoon? A. — I think that was before the 
change of time ; and, if so, I think it would be in the vicinity of 
half-past three o’clock the train arrived at Buzzard’s Bay, as it is 
now called, from Cohasset Narrows. 

Q. (By Mr. Talbot.) — That is the train from Barnstable? A. — 
Yes, sir. 

Q. (By Mr. King.) —Now, do you recollect how you passed that 
afternoon from half-past three till after six o’clock, when the train 
went down ? A. — No, sir. 

Q. — Have you any recollection about it? A . — I don’t think I 
have. I can only say where I should have been likely to have gone: 
that is all. I have no recollection of where I passed the afternoon. 

Q. — Now, Parker’s has been spoken of here. Is there a hotel 
close by the station there that is called Parker’s? A. —Yes, sir. 

Q. — Is there a sign up on it that is very conspicuous from the 
station close by, 44 Parker’s ” or “ Parker House ” ? A. —I cannot 
say, sir. I think there is a sign there of some kind ; but how con¬ 
spicuous it is, I am sure I cannot recall now : I don’t know as I have 
ever noticed. 

Q. — I understood you to say in your examination-in-chief that 
you knew Mr. Parker, who kept the house ? A. — Perfectly well, sir. 

Q. — And he has kept the house a considerable time, hasn’t he? a 
number of years? A. — He has been there a number of years. How 


HEARING —JOSEPH M. DAY. 


472 



long he has kept the house there, I am sure I don’t know. During 
the last political campaign I slept at his house one night. 

Q .—You know Noble P. Swift, of course? A. — I knew him 
some years ago, sir. 

Q. —How long since } T ou have seen him? A. —I should think it 
was about a week. 

Q. — Where was that? A .—That was at the depot of the Old 
Colony Railroad. 

Q. —Did you have a conversation with him? A. — I did not, sir. 

Q .—How recentl}’have }’ou seen him to have an}’conversation 
with him? A. —I should think about two months since, perhaps. 

Q. — Aboard the cars ? A. — Yes. 

Q. — He is living at Sandwich, isn’t he? A. —I think so. His 
relatives are there in one of the Sandwiches, I think. 

Q. — Now, I would like to call your attention specifically, judge, to 
the matter of these notes which have been put in here, — whether 
you remember any thing about their condition when they were put in, 
as to the form of their edges compared with them as the}’ are now? 
A. — I do not, sir: I never have seen the notes from that time, as I 
said, till this morning: and that was some thirteen years ago. 

Q. —Well, then, is it true or not, as Mr. Thacher stated, that he 
came over there, and opened the drawer for } r ou to have access to 
these papers on the Sunday that he testified to? A. —Yes, sir. 

Q. —And }’ou did examine ever} 7 pile of papers? A. — I did not, 
sir. 

Q. — Did he produce the papers for you? A. — He did, sir. 

Q .— But 3 T ou didn’t examine them? A. — I did not, sir. He 
produced for me the paper I asked him for. 

Q. (By Mr. Burdett.)—W hat was it? A .—The protest of 
Emil}’ Harrison against m3’ sitting in the case. 

Q. (By Mr. King.) — I understand } r ou, then, that }’ou have no 
knowledge whether these notes, as originally put in before you, had 
torn or cut edges? A .—I have not the remotest, sir. I remember 
this: that there were two of these notes at that time which Mr. 
Marston placed together, and contended were from the same piece 
of paper: that is all I remember about it. 

Q .—And didn’t he claim, also, that the cut edges exactl} T fitted 
into each other? A .—That I have no recollection of, sir, other 
than it is involved in the other proposition. 

Q. —Let me ask you if you know Enos N. Young of Province- 
town? A. —Enos, — I suppose I do, sir : I remember the name. 

Q •—And his father, John Young, I believe it is, do }’ou know 
him? A. — Not that I am aware of, sir; perhaps, ver}’ likely I 
should recognize him if I saw him, but not by calling the name. 


1882.] 


SENATE —No. 150. 


473 


Q* — If at an } 7 time there has been any conversation between 
Enos N. Loung or John Young, the father, if that is his name, with 
reference to this case of the petition for partition, any communication 
between you and them, how recently has there been any such com¬ 
munication? A .—Not since the petition for partition in the Supe¬ 
rior Court. 

Q. —Not since that ended? A. —Not that I am aware of. 

Q • — What was the earliest communication you had with either of 
them with reference to that matter? A. — I cannot tell you, sir. 

Q> — After the service of the process for the partition in the pro¬ 
bate court, was it? A. — Yes, sir : I think it was very soon after. 

Q • —And before the case came up in the probate court? A. — 
Yes, sir. 

Q • — Subsequently you performed services as counsel for them in 
the Superior Court case? A. —Yes, sir. 

Q. (By Mr. Talbot.) —Wasn’t Enos the petitioner? A. —No, 
sir: Reuben. 

Q. (By Mr. King.) —Now, will you state a little more particu¬ 
larly to the Committee what the communication was to you, whether 
personally or by letter, in the case of Enos Young? A. —I think by 
letter ; bnt I cannot say positively. I have looked over, or looked for, 
the probate letters of that year ; and I am unable to find them. I don’t 
know whether Mr. Higgins, who was register at that time, was in the 
habit of preserving those letters — they are preserved now — in the 
probate records. I have been unable to find any letters ; and I have 
looked also among my own private letters, but I found nothing there 
from either of them. But still the impression is very strong in my 
mind that it was a written communication, — I don’t know from 
which one of them it was. 

Q. — Well, in consequence of the communication, whatever it was, 
then, I understand that you dismissed the process in the probate 
court? A. —In consequence of being satisfied, from the communi¬ 
cation, that there was a question between them as to the proportions 
in which they owmed there, — some question of title to the real estate. 
There was, as I have said, no plea: there was no formal statement, 
on the part of the respondents, of their claim. 

Q. — Let me ask you once more with reference to the matter of 
Noble P. Swift. You said that your relations to him, subsequent to 
the arguing of the case in the Supreme Court, were those of counsel 
after his pay? A. —Yes, sir. 

Q. —How long was it before you recovered pay from him? A. — 
I cannot tell you, sir: I don’t remember now. 

Q. — Wasn’t it a considerable time after he w r ent into insolvency? 
A. —No, sir : it was before he went into insolvency. How' long be¬ 
fore, I cannot tell you, sir; but before he went into insolvency. 


474 


HEARING —JOSEPH M. DAY. [March, 


Q. —Let me ask 3 T ou, Judge Day, if you did not state, when called 
upon with reference to sitting in that case as judge before the return- 
day of the warrant, that Noble P. Swift hadn’t fully paid you for the 
service which you had done? A. — Not that I am aware of, sir. I 
have no recollection of making such a statement to any person. Per¬ 
haps if 3’ou will name the person, sir, I may recall something. 

Q — In the matter of Ada Stevens, to which you have testified, 
who were 3 T ou counsel for in that case? A. — I didn’t suppose I was 
counsel for an3 r one, sir. I supposed I was aiding a guardian in doing 
what he regarded as an act of justice. 

Q. —You sa3' now 3 t ou were not counsel for anybody in the case? 
A. — I didn’t so understand it, sir, — had no idea of an3’ thing of 
the kind ? 

Q .—What were you paid for? A. —I was paid, sir, when I 
found out that Morse & Holmes were at the bottom of this move¬ 
ment, as I understood it finally; that the3 r , through Mr. Cahoon, had 
proceeded, through Mr. Snow, to bring about this movement. I had 
no thought that Mr. Snow was, in any wa3 T , mixed up with Morse & 
Holmes. 

Q. —Well, 3’ou did advise, didn’t you, about the right of Morse 
& Holmes to recover for improvements? A. —No, sir: I didn’t 
advise about their right to recover for improvements. Nothing was 
said about improvements, excepting Mr. Snow asked the question 
whether, when the auctioneer put that up at auction, he ought to sa3 r 
anything about improvements; and in an instant I said, “Yes:” 
for, as the thing ran through my mind, if it was sold without regard 
to improvements, and the party paid its value, then, in proceeding 
against Morse & Holmes, Morse & Holmes w T ould have the right to 
claim for eveiy improvement which the3 r had placed there. 

Q. —Didn’t 3 t ou advise him, and he take it down upon a memo¬ 
randum-book in 3’our presence, what he should sa3 T at the auction 
sale?, A. —I don’t know, sir. If Mr. Snow says he did, I have no 
doubt he did. 

Q. — Didn’t 3’ou advise him about his advertisements as they went 
in for the sale under the license? A. — No, sir: I advised him just 
as he said I did. There was a mistake in one of the advertisements, 
and the question was, whether he was to go over it again ; and I told 
him yes. 

Q . —Then, you did advise him about that, didn’t you? A. —Yes, 
sir: I did advise him about that, as he has stated. 

Q • —Then, wasn’t it a fact that 3-ou advised him about the guard¬ 
ian’s deeds? A. He asked me if the deeds were correct, and I 
told him 3 T es. 

Q . —Wasn’t that advice? A. —No, sir. 


1882.] 


SENATE —No. 150. 


475 


Q •—Well, what is the difference between saying to him that his 
deeds w r ere correct, as a matter of law, and giving advice? A. — 
Technically, perhaps, advice would be something you would expect 
pay for. I should say it was information given to an executor, ad¬ 
ministrator, guardian, or an}' man standing in either of these relations 
to an estate. 

Q • — Didn’t you advise him about the deed after you stated to him 
that Morse & Holmes must expect to pay for it? A .—Didn’t I 
what, sir? 

Q . —Didn’t you advise him about that deed after you had stated to 
him that Morse & Holmes must expect to pa}’ for it? A. — I cannot 
tell you about that, sir, I am sure. I don’t remember what the time 
was, — that is, with reference to my knowing that Morse & Holmes 
were the movers in this matter. 

Q. — Did you do any thing else further than what you have stated, 
by which you earned the ten or fifteen dollars that you were paid? 
A. —Ten dollars, sir. I don’t remember, sir, any thing but examin¬ 
ing the question, as I told you, from the time when Mr. Snow came 
to me, in the first place, till he came afterwards, and I gave him my 
ideas how the matter could be accomplished. I know of nothing 
else, sir, that I did. 

Q. —Well, then, the ten dollars that you received, as I understand 
it, was for suggestions or advice or direction or information, what- 
ever you see fit to call it, with reference to Mr. Snow’s conduct in 
relation to this license to sell real estate? A. — Not at all, sir. 

Q. — Now, will you explain to the Committee what it was? A. — 
It was for investigating the question when Mr. Snow first came to 
me and stated the condition of that title, and for determining in my 
own mind what the proper course was to do justice to Morse & Holmes. 
It had no relation whatever to any advice or direction or informa¬ 
tion I gave to Mr. Snow, as to his proceeding as guardian of Ada 
Stevens. 

Q. — Let me ask you in behalf of whom you were acting? A. —I 
supposed, in the first instance, I was acting in behalf of Mr. Snow ; 
but, when I found I was acting in behalf of Morse & Holmes, I 
thought they should pay me for that investigation. 

Q. — Well, when you were acting in behalf of Morse & Holmes, 
you were acting in their behalf, were you not, as against the guardian 
and ward in your own court? A. —No, sir. I supposed I was 
acting for the guardian : I supposed the guardian wanted to do this 
piece of justice. 

Q. —Their legal rights were not the same, were they? — the ward’s 
and Morse & Holmes’s? A. —Well, sir, I could not conceive how 
Ada Stevens had any interest in the matter, excepting to avoid the 


476 


HEARING — JOSEPH M. DAY. 


[March, 


expense of a bill in equity, which might, if she had an}’ means, eat 
the whole of them up. I didn’t see how else the estate of Ada 
Stevens was interested in the question. 

Q. —Now, will you state a little more particularly what } T ou under¬ 
stand the bill in equity to be? A. — I understood, sir, from my in¬ 
vestigation of the law, that Morse & Holmes would have had a perfect 
right in equity by joining Ada Stevens with her guardian, showing 
that there had been a previous sale, which was illegal, for which a full 
consideration had been given, to have a conveyance from the guard¬ 
ian of the interest of that ward in the real estate. 

Q. — You consider that a court of equity could order a convey¬ 
ance, do you? A. — I did, sir, and do, sir. 

Q. — Let me ask you now a little more folly about this matter upon 
the cars, when }’ou went down with the women who were spoken of; 
matters testified to by Mr. Marston and Mr. Howes. I want to ask 
you if it is not true, as testified to b}’ those two men, that the atten¬ 
tion of the people in the car was attracted to the seat occupied by you 
and the two ladies? A. — I cannot tell you, sir : I have no recollec¬ 
tion of that fact. 

Q. — Whether, or not, it was quite manifest and apparent to any¬ 
body in the car, what the condition of this woman was who had 
drank? A. — I hope not, sir ; but I cannot tell. 

Q. — Have no recollection so 3 011 can state whether or not people 
were observing what was going on in yoifr seat and theirs? A .—I 
have not. I know nothing was ever said to me by a soul upon the 
subject till I heard it here. 

Q. — Well, then, I wish you would explain to the Committee, if 
that transaction or occurrence was not attracting attention, how it 
would have been difficult for you to have relieved yourself from that 
embarrassment, and to have gone out of the seat? A. — Because, 
sir, attempting to get from the seat would certainly have attracted 
the attention that I hoped was not attracted towards it; for the 
woman was in such a condition that I felt she must go upon the floor 
if she was moved at that time. 

Q. — How long, then, was it that that condition of things re¬ 
mained? A. —I cannot tell you, sir: it was some time; I cannot 
tell you how long. ♦ 

Q . — The charge of thirty-five dollars which is in the order of dis¬ 
tribution to you for services in the libel suit, — there never has been 
any question about that, has there ? that that was for services in this 
libel suit in the district court? A. —Not that I know of, sir. I pre¬ 
sume that to be the case : if it is said it was, I presume it was. I 
don’t remember about it now. 

Q -— As to the case of Mary C. Paddock, who came to you with 


1882.] 


SENATE —No. 150. 


477 

reference to the commitment of her sister to the insane asj'lum : the 
document which she brought was correct in form, wasn’t it? A. — 
No, sir. 

Q . — What was the matter with it? A. —There was no signature 
to the questions that should be answered by the judge of probate : 
other than that, as far as it went, it was correct in form. It didn’t 
go far enough to authorize me to issue a warrant. I always issue 
notice on a paper of that kind to the party alleged to be insane. 

Q. — Whose business w r as it to sign the blank that you say should 
have been signed ? A. — The applicant, whoever it was : the com¬ 
plainant, as she is called. 

Q. —Mrs. Paddock, there, under proper instructions or sugges¬ 
tions, could have signed the paper on the spot, couldn’t she? A. — I 
don’t know, sir : that would depend on the language of the statute. 

Q. —Wasn’t it the fact, however, that Mrs. Paddock went from 
your office without any such knowledge whatsoever as to what her 
course was to be, or ought to be? A. —No, sir, no, sir: she was 
distinctly told what her proper course was, and she distinctly refused 
to pursue it. 

Q. — But you know as a matter of fact, don’t you, that her physi¬ 
cian was at considerable trouble afterwards in finding out what course 
he could pursue to get this woman to the asylum? A. — I do not, 
sir, nor have 1 ever heard any thing of the kind. 

Mr. Burdett. He testified he found out as soon as he got to the 
asylum the next day. 

Q. —You heard him testify to that, didn’t you? A. —I heard 
him testif}’ he went to Taunton : yes, sir. 

Q. — As to the matter of fees charged by the register for papers, 
have you had knowledge that that was the practice and has been the 
practice for a number of years down there? A. — I had supposed 
so, sir, ever since I have been in Barnstable Count}’. 

Q. —And has it been your practice up to the time Mr. Curry con¬ 
ferred with Mr. Thacher, to allow that charge in favor of the adminis¬ 
trator in accounts which they settled? A. — I cannot tell }’ou, sir: 
the accounts will show that. 

Q. — You don’t know whether you have, or not? A. —I cannot 
tell you, sir: the accounts will show that. I think very likely they 
have charged them. I should allow them, I will say that. 

Q. —Then, do I understand you to sa}’ to this Committee, that dur¬ 
ing all this period of service up to this time you don’t know whether 
you have allowed that dollar as an item of charge in the adminis¬ 
trator’s account? A. —Yes, sir, I mean to say that I cannot now 
say whether I have or have not. If you ask me whether I have any 
doubt upon the subject, I will say to }’Ou I have no doubt but what I 
have : I do not know’ that I have. 


478 


HEARING —JOSEPH M. DAY. [March, 


Q. — Now, let me ask you in regard to your conference with Mr. 
Thacher, or his with you, when the commissioner of savings banks, 
or previous to the time when the commissioner of savings banks, 
visited him, in relation to this matter, whether Mr. Thacher asked 
you in relation to the propriety of that charge? A. — Never, sir, in 
this world: the registers of probate are entirely independent of me, 
to make charges just as they see fit. 

Q. — When Mr. Thacher says he asked you about it, and you said 
it was perfectly right for him to do it to the injury of no one, I 
understand you to say that is not the fact? A. — I say, sir, I never 
advised Mr. Thacher upon the subject of taking those fees either 
one way or the other. I never was asked : I was only asked whether 
the}' should go into his return to the Secretary of State as fees taken 
by virtue of his office. 

Q. — I want to call your attention particularly, now, to what Mr. 
Thacher said, p. 38 : “ Judge Day told me at that time, — and Mr. 
Harriman, I think, told me at the time, —that it was nothing to do 
with the commissioners ; and, if I saw fit to make the charge, I had a 
right to do it, provided I injured no one.” I want to ask you if that 
is a correct statement of the facts as they occurred? A. —I have 
no recollection, sir, of any such occurrence. 

Q. — Now let me return to the question which I asked some 
time ago, if it is not true, that, when this matter of Mrs. Newcomb’s 
communication with the insurance office was going on, whether, at 
that time, you didn’t have an office in Boston, to which you were 
going with more or less regularity and frequency ? A. — I think 
not, sir. 

Q. — That was in the early part of 1874, wasn’t it? A. — I can¬ 
not tell you, sir : I don’t remember. 

Q. — You don’t remember when the money was paid to her, then? 
A. — No, sir. 

Q. — And you don’t know when you discontinued your office in 
Pemberton Square? A. — I do not, sir. 

Q .—Who was register at the time Noble Swift went into insol¬ 
vency? A. —Jonathan Higgins. 

Q. — I want to ask you a little more particularly than I have, and 
call your attention to the time when these notes which are here before 
the Committee, — if you cannot recall whether these notes were proved 
they were presented to you, or placed before you together, by Mr. 
Marston, with ragged edges which fitted into each other? A. — I 
cannot recall any thing upon the subject, sir, excepting that I re¬ 
member of Mr. Marston putting the edges of two notes together, I 
think, and claiming that they were both from the same sheet of paper. 
I have no other recollection upon the subject. 


1682.] 


SENATE —No. 150. 


479 


Q' Whether they were these notes or not, you don’t remember? 
A* I cannot tell you, sir. I presume them to be some of these 
notes, as these were the only ones proven in the case that I can 
remember. Over four thousand cases of one kind and another passed 
under my hands, and I cannot remember an individual case with any 
distinctness. 

Q- —Do you know where Enos N. Young is? A. —I do not, sir. 

Q • — You have made no inquiry? A. — No, sir. 

Re-direct Examination. 

Q. (By Mr. Burdett.) —Judge Da}’, has the question of the pro¬ 
priety of allowing the register one dollar for clerical services rendered 
by him ever been raised before you judicially? A. —Never, sir. 

[ Close of Judge Day's testimony of 1881. ] 

JUDGE JOSEPH M. DAY. Sworn. 

Direct Examination by Mr. Thompson. 

Q. —I wish to ask you, in the first place, one or two questions with 
regard to the matter of Mary C. Paddock ; and that is in this year’s 
allegations, the seventh. Now, sir, whether, or not, you said to 
Mary C. Paddock, “ Well, }’ou want to get this woman off your hands. 
Bring her up here, and I will serve a writ.” Was there any such 
conversation as that? A. —No, sir, nothing of the sort. There 
could have been no such conversation ; no writ is served ; and the 
expression I made use of was — I will not say it wasn’t “ Well, you 
want to get this woman off vour hands ” — and this was the reason 
for what I said : she came there desiring me to send her sister to the 
insane hospital upon the certificate of two physicians without a par¬ 
ticle of testimony and without a particle of notice to her sister. I 
declined to do it, saying I had no right under the law to do it. I said, 
if she wanted her sister sent to the insane hospital, or lunatic hospital, 

I would have notice given her sister; and then at the proper time I 
would have a hearing. Her reply was that she could not wait for 
that; she had joined Dr. Howe’s party that was going to Santo Do¬ 
mingo, and she could not wait for her sister and to have notice. That 
is all I desire to add in relation to the Mary C. Paddock case. 

Q. —Whether, or not, you knew that she was alone in the carriage? 
A. — I did not, sir ; but, if I had, sir, I should not have sent her any 
the sooner for being there in the carriage, for I have no right to by 
law. 

Q. (By Mr. Burdett.) —In relation, Judge Day, to the charges 
of last year, I desire to ask you a few questions. The first one con- 


480 


HEARING — JOSEPH M. DAY. [March, 


cerning which there has been any evidence introduced is the seventh 
specification under the first charge, that “in 1877, in the case of 
Ambrose N. Doane, administrator of the estate of Joseph C. Law¬ 
rence,” you acted improperly and illegally as counsel. Do you 
remember that case, and the matters connected with it? A. — I do, 
very well indeed. 

Q. — Mr. Ambrose N. Doane was the administrator? A. —He 
was administrator of the estate of Joseph C. Lawrence. 

Q. —And he paid you how much? A. —Twenty-five dollars. 

Q. — And for what was that twenty-five dollars charged ? A. — 
For this : some time before Mr. Lawrence’s death he and his wife had 
had difficulties. She had been off living with another man, and he 
refused longer to support her. Proceedings were brought before the 
Supreme Court to compel him to support her, and to refrain from 
molesting her in any way. Thus the proceedings extended over 
several months. A suit was brought also against him to recover the 
price of some provisions which had been furnished to« his wife. 
Those matters I had in charge. When Joseph C. Lawrence died, he 
owed me a balance of about fort}’ dollars for services in the contro¬ 
versies between him and his wife. He owed me also for services in 
the other matter, in the suit against him for provisions. If he had 
lived, I should have received the whole of my bill. He died, leaving 
four or five children, — and I took twenty-five dollars from Mr. Am¬ 
brose N. Doane in full of all demands. That is the whole of that 
transaction. 

Q. (By the Chairman.)— Who was the party that brought the 
suit for the provisions? Was it this Harrison? A .—No, sir: 
somebody brought an action in behalf of a baker by the name of 
Lawrence, and I appeared in the case. It is stated no answer was 
filed in the case. I desire to say that it is not customary for us in the 
county of Barnstable to file answers until we get ready ; and that in 
that case, after a good deal of talk backwards and forwards, and look¬ 
ing over the whole matter, it was finally concluded that there could 
not probably be a successful defence ; and so no answer was put in. 

Q. (By Mr. Burdett.) — I understood, Judge Day, that you had 
a bill of a matter of forty dollars for services against his w r ife? A. — 
I had, sir. 

Q. — And another bill of forty dollars for services in the other 
suit against Lawrence? A. —I had, sir. 

Q. —And you took twenty-five dollars for the whole bill? A. —I 
did, sir. I appeared for no administrator nor against any adminis¬ 
trator, and I had nothing to administer but a charge of twenty-five 
dollars for services performed before Joseph C. Lawrence died. 

Q • — Did you receive any compensation whatever from Ambrose 


1882.] 


SENATE —No. 150. 


481 


Is. Doane, administrator of the estate of Joseph C. Lawrence for 
any services rendered to him as administrator. A. — No, sir. 

Q- any compensation from anybody for acting against him? 
A. —No, sir. 

Q‘ The ninth specification is that in 1880 you acted “ in the 
case of Mary M. Goodspeed, administratrix of the estate of Levi L. 
Goodspeed:” have you any recollection of that case,*Judge Day? 
■A- —Perfectly, sir : very few cases are more definitely impressed on 
my mind than that. 

Q- —IV ill 3 t ou state what you have to say in reference to that case 
and the difficulties which grew out of it, and also say what service 
} 7 ou rendered ? A. — I can sa 3 T this : I never acted as attorney in or 
out of court for Mrs. Goodspeed, either in her capacity as adminis¬ 
tratrix or guardian, or in or out of court as attorney for Mr. Whit¬ 
man, the guardian of the other child. I never made a charge against 
them, and never received a cent from either of them. 

Q‘ — Did there any difficulty arise between the parties in that case ? 
and, if so, can you give us some idea of what it was and what 3 T ou had 
to do with it? A. —Yes, sir, there were difficulties all the way 
through, and connected with all their relations to Mr. Proctor. I 
am trying to state the matter as briefly as I can, and shall be happy 
to respond to any question the Committee may ask if any occur to 
them. The first I knew of these parties as having an} 7 thing to do 
with each other, was one da} 7 , just as I was about to go to my dinner, 
Mrs. Goodspeed came in with Mr. Proctor, young Mr. Goodspeed, 
aud Mr. Whitman — 

Q. —The guardian of Charles F. ? A. —Yes, sir. They stated 
amongst them that a contract had been made between them and Mr. 
Proctor in relation to the sale of the real estate and some of the per¬ 
sonal estate of Mr. Levi L. Goodspeed. They wanted their agreement 
reduced to writing, so that it should bind the one and the other. I 
said to them, “ Well, I am going to dinner; and, when I come back, 
I will reduce it to writing for you.” I had asked them why they had 
not done it themselves, or got somebody else to do it; and they said 
they had nobody else who could do it. Mr. Proctor replied that he 
had got to go to Mansfield, I think it was, that afternoon at four 
o’clock. I said, “ Very well: there will be ample time for me to go 
to dinner, and you to do what you want, and then you can leave at 
four o’clock, and go through to Mansfield, for the cars run through the 
village.” But he said he had to go first to West Barnstable before 
going to Mansfield. I then sat down, and they told me what their 
agreement was. I reduced it to writing, and read it over to them. 
They said it was all right, and they signed it. A few days after¬ 
wards, young Goodspeed came down, and said, “Judge Day, that 


482 


HEARING — JOSEPH M. DAY. [March, 


agreement was not drawn as it should have been.” — “ Well,” I said 
to him, “ I drew it as } 7 ou told me to draw it; and I read it over to 
you afterwards. Why didn’t you correct it at the time, if it was not 
right? ” He said he didn’t think of it: it had escaped his attention. 
I said, “ What is the matter? ” — “ Why,” he says, “ as this agree¬ 
ment is drawn, the house and place (for which his father had given 
thirteen hundred and fifty dollars) in East Barnstable goes with the 
rest of the real estate ; and that wasn’t to be included in the sale.” — 
“ Well,” I said to him, “ if that is so, Mr. Proctor won’t insist upon 
having that.” — “ Well, but he says he does insist upon having it; 
and he insists upon holding us to the agreement just as it was writ¬ 
ten ; ” and he seemed to be in a great deal of trouble about it: it 
annoyed him very much, and I said to him, “Bring Mr. Proctor 
down here to see me ; ” and Proctor came down, and I saw them on 
my piazza. I found, from Proctor’s talk, that he intended to enforce 
that agreement according to its terms, as it was written. Without 
expressing myself to him, in the presence of young Goodspeed, as I 
felt in relation to it, I said, “ Mr. Proctor, will you step this wa}^?” 
I took him to the end of the piazza ; and I said to him, “ Mr. Proctor, 
you know, do you not, that that property in East Barnstable wasn’t 
included in the sale?” — “Well,” he said, “it was in the agree¬ 
ment.”— “Well,” I said, “it wasn’t in the sale, Mr. Proctor: it 
wasn’t intended to be in the sale.” — “Well, no, it was not.” — 
“Well, now,” I said, “Mr. Proctor, for God’s sake don’t try to 
enforce that agreement against those people!” I said, “ You are 
living in a community where such things are not understood to be 
consistent with any degree of honesty or uprightness whatever; and, 
if you are going to live in the town of Barnstable, a thing of this 
kind will damn }'ou forever.” Then I said to him, “ The contract, 
as it was realty intended between you and these people, gives 3 * 011 , 
Mr. Proctor, real estate for which Mr. Goodspeed gave a good many 
thousand dollars. It gives you a good bargain, —as good a bargain 
as any man need have, — and, if the project is carried out of estab¬ 
lishing a truant school in the county of Barnstable, it is very likely 
to be established at this end of the county ; and there is no place at 
this end of the county so eligible for any such institution, as of yours ; 
and I have no doubt you would make a handsome profit on your place 
if it were wanted for that purpose ; ” and, as Proctor concluded that 
he would not enforce that contract, I said, “ Well, Mr. Proctor, I will 
re-write that contract; and you will sign it?” and he said yes. I 
went back to where the others were, and I said to Charles Goodspeed 
that Mr. Proctor was all right; that he meant to do what was fair 
about the matter; that I would re-write the agreement, and Proctor 
would sign it. I did so, and he signed it. For that I made no charge 


1882.] 


SENATE —No. 150. 


483 


■whatever ; and I told them I would make no charge, when the} 7 first 
came there. Then commenced the difficulties between Mrs. Good- 
speed and Mr. hitman in relation to carrying out the terms of that 
contract. 

Q. (By Mr. Burdett.) —Let me interrupt you a moment. Was 
there any thing said about paying for any thing in relation to the 
agreement? A. —Yes, sir. 

Q- — What was it? A. — I said I have no charge whatever to 
make for it, but it would require to be copied ; for at times my writ¬ 
ing is very illegible, and it happened to be then. I said, it must be 
copied, and Mr. Thacher will make you copies of it, and you must 
pay Mr. Thacher; to which all assented, and I understood afterwards 
they paid him. 

Q. —Did you make any charge, or receive or demand any thing, 
in connection with your services in this matter? A. — Nothing. 

Q • — From anybody ? A. — Never. 

Q. —Now you may proceed with the other matters. A. —In the 
course of time, a petition was heard in relation to the sale of the real 
estate at private sale, and the testimony of some of the best judges 
of real estate in West Barnstable was heard; and, in addition to 
taking that testimony, I took the advice of several others who didn’t 
testify in the case. It seemed to me to be a very large sacrifice to 
make, and I wanted to be perfectly certain that it was the proper 
thing to do. I satisfied myself, upon the testimony of the best men 
and the best judges of real estate in West Barnstable, that, great as 
the sacrifice was, it was probably the most prudent thing for them to 
sell for the price agreed upon ; and the decree was passed. Then 
commenced a series of contentions between Mrs. Goodspeed and 
others, that lasted all that summer, as to their rights under that 
agreement; and it seemed to me that there were very few days when 
they were not down to see me. It became a perfect annoyance and 
pest to me, and I said to them again and again — perhaps if I were 
to state the number of times I should say every day, because every 
day I felt it many times when I would say nothing on the subject — 
but time after time, I asked them to get counsel: I didn’t want to be 
bothered with that matter, but the}’ went all through the whole sum¬ 
mer months in that way. I will say that very early Charles Good- 
speed was the party that seemed rather to take the lead. When his 
mother and when Mr. Whitman were there, Charles seemed rather to 
take the lead. I saw very early in his visits to me that Charles was 
asking a great many questions that had nothing whatever to do with 
the settlement of the estate, but referring entirely to private matters, 
and nothing to do with an} 7 probate court. I said, that, if he w r anted 
advice upon matters that didn’t relate to the settlement of the estate, 


484 


HEARING —JOSEPH M. DAY. [March, 


he should go to whatever counsel he chose to go to. If he came and 
asked those questions of me, he must understand I would charge 
him or charge anybody, or any other attorney would charge him ; and 
that he understood perfectly. I can hardly say that the contentions 
are at an end now; but I got through with all relation to the matter, 
for I have nothing more to do with it, having left it some time at the 
close of the summer, I cannot say just when. 

Q. (By the Chairman.) —Last summer? A. —In 1880. What 
has taken place since, I don’t know. The bill which Charles Good- 
speed paid to me was for advice to him personally, in no way relating 
to the settlement of the estate, and, as I think, an exceedingly mod¬ 
erate bill. I cannot but regard it so ; and, when Mr. Snow spoke on 
that subject afterwards, my reply was this: “Mr. Snow, if I had 
charged Charles Goodspeed for all the advice I gave him, it would 
have amounted to several hundred dollars.” I think there was 
advice to the extent of hundreds of dollars that I gave to those 
people that was in no way connected with the settlement of the 
estate, but it was what I have had to do ever since I have been in 
the county of Barnstable. I have always done it, and I alwa}’s shall 
do it while I am judge. All this advice I have to give people there: 
they do not understand being sent to attorneys as in the city and 
large populous counties. They go to the judge of probate because 
they think he is their official adviser. 

Q. — In what capacity have you acted in this matter? as counsel or 
judge? A. —As judge entirely, and never in m} T life has an adminis¬ 
trator or executor or guardian paid me one farthing for advice as to 
the settlement of the estate, or connected with the settlement of the 
estate. 

Q. —Now, that almost covers the question I was about to ask 3 T ou : 
whether you charged against or received from Mrs. Goodspeed or 
Mr. Proctor or Mr. Whitman or young Goodspeed any thing in 
reference to this settlement of the estate? A. —Nothing, sir. 

Q. — And the fifty dollars you got from young Goodspeed was in 
relation to matters you have already testified to and nothing else ? 
A. —Nothing else. 

Q. — Now, did you say any thing to Mr. Proctor or any of these 
persons in relation to your not acting as counsel for any of these peo¬ 
ple ? A. — I did, sir. 

Q. —When? A. — I cannot tell when, excepting it was during 
that summer before Proctor spoke to me and asked me if I was act¬ 
ing as attorney of Mrs. Goodspeed. I told him, no ; that I was not 
in any way or sense acting as attorney of Mrs. Goodspeed, or of any¬ 
body else there ; that I was simply doing what I regarded my duty 
towards Mrs. Goodspeed and those children. 


1882.] 


SENATE —No. 150. 


485 


Q. (By Mr. Thompson.) —Will you state what you said, whether 
3*ou said you would do it and when? A . —Yes, sir, I did : I made 
some remark to the effect that as long as God gave me life or breath, 
I should do so. 

Q. —Can } 7 ou state whether 3 T ou said any thing of this kind to Mr. 
Proctor more than once, or in his presence? A. — I cannot be cer¬ 
tain about that, sir. M3 7 impression is that I did, but it is 011I3 7 an 
impression : I cannot be certain about it. 

I must ask to correct my testimony in one respect. I stated that 
the first time I saw the parties was when they came to me, and it was 
the first time I saw the parties all together; but one or more of them 
came to me, and asked me whether a guardian could enter into such a 
contract; and I told them no, a guardian could not unless the contract 
was worded to take care of the contingenc3 7 that the judge of probate 
might refuse to allow a license to sell at private sale ? 

Mr. Harriman objected to the statement, and it was ruled out. 

Q. (By Mr. Burdett.) —I desire to ask 3*011, Judge Day, if 3*011 
ever said to Mr. Pro.ctor in Barnstable, in front of 3 7 our house, “ there 
are parties that want to buy that farm for a school,” etc.? A. —■ 
No, sir. 

Q. —Now, specification eleven under chapter one is that in 1877 
3*ou improperly and illegally^, as counsel in the case of Bradford L. 
Crocker, executor. Now we will take that case in relation to the will 
of Betsey* Kelle3 r . Do 3*011 remember the administration of that 
estate ? A. — Yes, sir. 

Q. —And who the executors were? A. —Yes, sir. 

Q. — Who were they ? A. — Bradford L. Crocker, and Mr. Nye 
of H3*annis — Hiram N3*e. 

Q. —You have heard the testimony in relation to that matter, 
given before the Committee? A. —Yes, sir. 

Q. — Will you state in 3*our own way what the facts about that 
case were so far as 3*our connection with it is concerned ? 

The Chairman. I think, Mr. Burdett, that it is hardly the proper 
wa3 7 to let him give a general history of the whole case. Ihe only 
evidence before us of any impropriety, was in the payment of five 
dollars, by Bradford L. Crocker. Now, it seems to me, that in your 
question and in his statement, 3*011 should confine yourselves to that. 
There is no evidence of any* thing else, that I recollect. Judge Da3*, 
suppose 3*011 state any thing in relation to this testimon3* of Mr. 
Crocker’s that he paid you five dollars as executor, and any thing 
in connection with this letter which 3*011 wrote to him. 

Witness. I never received one farthing from Mr. Crocker for 
advice to him as executor. I have no recollection of receiving a 
dollar or a cent from him in any w*ay in the world; but I have never 


486 


HEARING — JOSEPH M. DAY. [March, 


received a dollar or a cent from him for advice to him as executor. 
He asked me for no advice as executor. Mr. Bradford L. Crocker 
was in a quarrel perpetual^ with the other executor; and he came 
to me time after time, and time after time, about his quarrels with 
that other executor: and, amongst other things, I remember — it was 
called to my mind by the testimony that I heard here — he talked to 
me about the moving of that barn. It seemed to trouble him very 
much that Mr. Nye had moved that barn, and he came to me time 
after time about it; but I have no recollection of his pa} T ing me a 
dollar in any way, shape, or form ; and I know he never did for 
advice to him as executor. As to the letter he says I wrote him, 
there never was such a letter in existence. I never wrote him any 
such letter. There could have been no occasion for such a letter. 
There was no controvers}^ between Mr. Crocker and m3 T self, and no 
controversy between him and anybod}^ else, that called for the pay¬ 
ment of money. I never wrote him a line asking him for money : I 
never suggested it in any way in the world. If the Chairman will 
permit me, I should be glad to state, in regard to the sale of the real 
estate — 

The Chairman. I cannot see, after the testimony that 3’ou have 
given, Judge Day, how any thing that you may say would put the 
thing more strongly than you have put it. 

Witness. If the Chairman will pardon me one moment — it may 
be that I was wrong. If I am, I certainly do not ask to say any 
thing further upon that point; but it seemed to me that the counsel 
for the petitioners here attempted to make it appear to the Com¬ 
mittee, that I, after having given a license to an executor to sell cer¬ 
tain real estate, had brought a writ of entry to recover it back. 

Mr. Crowley. I would like to have that explanation, judge. ' 
That was the impression that the counsel tried to make -upon the 
Committee, and I would like to have it explained. 

Mr. Harriman objected. 

The Chairman. I think there is something in the suggestion that 
Mr. Thompson makes in regard to the position in which Judge Day 
is here that entitles him to more consideration and liberty in his evi¬ 
dence than an ordinary witness should receive ; and, if the judge feels 
that he wants the Committee to hear his statement, we will allow him 
to make it. 

Witness. Some time after the will of Betsey Kelley was approved, 
the fact was called to m3’ attention that deeds which were lying in her 
house at the time of her decease had been handed b3* these executors 
to certain parties, and that certain parties were claiming that land. 
An agent of the Evangelical Society in Hyannis, Mr. Charles H. Nye, 
came over to see me upon the subject, stated the facts of the case, etc. ; 


1882.] 


SENATE—-No. 150. 


487 


and I at once said to him that those deeds were of no force or effect. 
At that time it was not supposed that there would be a necessity for 
selling any real estate to pay Betsey Kelley’s debts, but it turned out 
finally that there was. He instructed me to bring, in behalf of the 
Evangelical Societ}" in Hyannis, writs of entry to recover that land. 
I did so. Mr. Marston appeared upon the other side. I saw Mr. 
Marston, made a statement of the case to him, and he became thor- 
oughty convinced that there was no title passed by those deeds ; and 
he never even put in a plea in the case : but they were kept along in 
court, as appears, standing along from time to time, until the result 
of another lawsuit — brought, I think, by a man by the name of 
Baker against the estate — made it necessary to sell real estate. Then 
Mr. Nye came over to me, and made application for a license to sell 
real estate. Here is the application. 

Q. (By Mr. Crowley.) —Were those suits brought before the 
application to sell real estate? A. — Oh, yes, sir ! long before that. 
This application for a license to sell real estate is in my handwriting; 
and I desire to say in explanation of that, that that is what a coun¬ 
try judge of probate has to do very often. 

The Chairman. It is not necessary to state that. 

Witness. The Committee will see the wa}^ in which that petition 
is signed. [Exhibiting paper.] The names of both executors are 
there, you see, but in one handwriting. That is what I desire to call 
the attention of the Committee to. 

Q. (By Mr. Harriman.) —Whose handwriting? A. —Mr. Nye*s. 
When Mr. Nye brought this license to me, I asked him whether, or 
not, Mr. Bradford L. Crocker signed his name to that license. He 
said no ; and, as will appear ly the decree, I therefore issued the 
license to Mr. Nye alone. After the license was issued, Mr. N}’e 
came ov£r to me and asked me what real estate he should sell. I 
said, “ Mr. Nye, sell the real estate that can be sold to the best ad¬ 
vantage.” I asked him what he thought could be sold to the best 
advantage. “ Well,” he said, that land that had no buildings upon 
it.” I said, “ Very well, Mr. Nye, sell that land, then, that has no 
buildings upon it.” And I said to him, or he to me, — I can’t tell 
which now, — something in relation to its being the very land that 
was involved in these writs of entry. I said, “ Veiy well, sell it.” 
He sold that land that was involved in the writs of entry; and the 
title went to a man by the name of Clark, where it has remained ever 
since. That settled the writs of entry: there was no recovering of 
the land back ; it was sold for the payment of debts. 

Q. (By Mr. Cook.) —Who rendered the account of this sale, Mr. 
Nye or Mr. Crocker, or both? A. —Mr. Nye has rendered no ac¬ 
count at all. Mr. Crocker is the only person who has rendered any 


. 488 


HEARING —JOSEPH M. DAY. [March, 


account. I should say, in relation to my connection with these writs 
of entry, that I was in communication with Mr. Charles Demond, at 
that time the treasurer of the Home Missionarj 7 Society, and with 
Rev. Dr. Hooker, who was the secretary of the society. The Home 
Missionary Society had the Evangelical Society of Hyannis under its 
care (it was a kind of missionary society), and the whole proceeds 
of this estate finally went to the Home Missionary Society. This last 
account, — the original, I think, is not here ; but the Committee saw 
it the other day,— this long account [exhibiting paper] was made 
out Charles Demond here in Boston with Mr. Bradford L. Crocker. 
All the parties interested in the estate signed it, and it was passed as 
a matter of course. The costs upon the writs of entry were never 
collected. The land having been soid for the payment of debts, it 
disposed of the whole question. 

Q. (By Mr. Bcrdett.) —The account was settled with the consent 
of all parties interested ? A. — With the consent of all parties inter¬ 
ested ; and the Rev. Dr. Hooker would not even permit the costs in 
those cases to be collected. 

Q. (By Mr. Crowley.) —The writs of entry were brought before 
they supposed there would be any necessit}^ to sell real estate ? A. — 
Yes, sir, long before. I should like to say, for fear some question 
might be made in relation to it, that this is not a good license. It 
runs to one of the executors, and not to both. But, at the time this 
license was granted, the case of Hannum v. Day (105 Mass.) had not 
been published. This license was granted in 1871 . The case of 
Hannum v. Day was decided in 1870 , but the volume was not pub¬ 
lished until 1872 . It was a case in which Judge Wells gave the 
dissenting opinion. 

Q. (By Mr. Burdett.) —So that, as I understand it, at the time 
this decree was issued, there was nothing in the laws of the Common¬ 
wealth to show that it was not a valid license? A. —Nothing at all. 
I thought it was valid. 

Q. (By Mr. Thompson.) —When you say all the proceeds went to 
the Home Missionary Society you mean all the balance? A. — Yes, 
sir, all the balance. 

Q. (By Mr. Thayer.) — I should like to ask you one question ; and 
that is, why was it that these deeds which you found in somebody’s 
possession, upon which the writs of entry were brought, turned out 
to be invalid and of none effect? A. — Because they were in the 
possession of the executor: they had never been delivered, and an 
executor cannot deliver a deed. 

Q. —Mr. Marston appeared in opposition? A. —Yes, sir. 

Q. —And he was satisfied that he had no case ? A. — Oh, entirely, 
sir! There was no pretence that there was any case ; and Mr. Nye 


1882.] 


489 


SENATE —No. 150. 

none of these parties had paid a dollar for this real estate. Betsey 
Kelley gave this land to three different persons: and Mr. Nye took 
his deed fiom the man Johnson, to whom she gave it 5 but Mr. Nye 
never.paid a dollar for that land, and didn’t intend to until those 
writs were settled one way or the other. So that it turned out, as he 
had no title, the land went for the payment of debts. That ended 
the whole thing ; but nobody was ever injured a dollar. 

Q . (B} r Mr. Burdett.) — I will call attention to the allegation 
No. 13 , under the first charge, which appears for the first time, so 
far as I know, in the printed testimony on p. 110 of this vear’s pro¬ 
ceedings, an amendment to the specification: “ In the case of Vara- 
nus B. Nickerson v. Edward E. Crowell and others, in the Superior 
Court for the county of Barnstable, during the years 1867 , ’68, ’ 69 , 
and ’ 70 , w r hich suit or matter depended upon and related to certain 
decrees and orders made and passed by him as judge of the court of 
insolvency in the case of Varanus B. Nickerson.” It is said by Mr. 
Wadleigh in connection with this charge, “That is a matter of rec¬ 
ord : there is no evidence, I think, but the record itself.” I will call 
your attention to this, Judge Day. Do you remember that case? 
A. — I do, sir : I brought that action. 

Mr. Burdett. I think the writs, and the dates of the writs of 
entry, have been put into the case, have they not? 

Mr. Harriman. Yes, sir, they have. 

Q. — Now, do 3’ou remember any proceedings by or against Vara¬ 
nus B. Nickerson in the court of insolvenc}-' for the county of Barn¬ 
stable? A. — Yes, sir. 

Q .—Were those before or after the instituting of this suit by you? 
A. — Before, sir. 

Q. — How long before ? do you know ? A. — I cannot tell. It was 
some time — considerable time : I don’t know how long. 

Q. — Do you know what the result of the insolvency proceedings 
were? A. — Yes, sir: they wmre all vacated upon petition of the 
creditor; the proceedings w r ere vacated. I desire to say in relation 
to the suit of Varanus- B. Nickerson, that, for the first time in my 
life, I heard it suggested that that w T as in any way contrary to law. 
[Mr. Harriman objected.] I didn’t so understand it to be. If that 
is a violation of law, it is a pure piece of misconception on my part; 
for I never had such a thought in my mind as that it had any refer¬ 
ence whatever to any decree made by me, or in any way dependent 
upon being made by me. 

Q .—That is, the suit having been instituted long after the insol¬ 
vency proceedings were vacated and w r ere made entirely null and 
void? A. — And the suit being upon a policy of insurance. 


490 


HEARING — JOSEPH M. DAY. [March, 


The Chairman. The Committee, Judge Da} 7 , would like to have 
you state exactly what that transaction was which you think was per- 
fectl}* legitimate in regard to this Varanus B. Nickerson matter. 

Mr. Harriman. My objection is, that, whether or not that is con¬ 
trary to law, is for the Committee to determine, and not for Judge 
Day. 

Mr. Hill. We want to know exactly what it was. 

Mr. Harriman. It has been stated, and I do not think it is 
material for him to sav what he thought about it here. I think it is 
for the Committee to judge. The court is presumed to know the 
law, and the statute is plain and clear upon this point. 

Mr. Burdett. All right: I am glad to know what your claim is. 

Mr. Harriman. The answer and replication show just what the 
issue was. [Mr. Harriman then referred the Committee to pp. 171 , 
172 , 1 G 3 , and 164 of the testimony.] 

The Chairman. That shows the facts we wanted to get out. It 
appears it was two or three } T ears after vacating the decree before 
this suit was entered in court. 

Q. (Bjr Mr. Thayer.)— Was this insolvency matter ever put in 
again after that? A .— No, sir. 

The Chairman. Now, are there any other matters that can be 
gone through with briefly* ? 

Witness. I would like to state in relation to the cash-docket of 
the register, Mr. Thacher. He kept a cash-account upon a book, 
perhaps as large, or a little larger, than an ordinary sheet of letter- 
paper — 

Mr. Harriman. I submit that docket ought.to be produced here. 

Mr. Thompson. You can produce it if you want to. 

The Chairman. You can give notice to them to produce it. 

Mr. Harriman. It should be in possession of the probate court: 
it was kept there. 

Mr. Thompson. Let him state what it was. 

Witness. He kept a cash-account of the moneys paid to him by 
the insolvents, and an account of what he paid out. After he re¬ 
signed, I think it was, and after Mr. Harriman had threatened crimi¬ 
nal proceedings if the balance was not paid off that was due, I went 
to Mr. Thacker’s house, and there I found he had taken that docket 
or account book : he had carried it to his house, and put it amongst his 
own papers. I didn’t take it away : I took a copy of it, and handed 
it to Mr. Hiram P. Harriman; and at my office he looked it over, 
showing the balance that was due from Mr. Thacher to the treasurer 
of the Commonwealth. 

Q. (By the Chairman.) —Where was this book kept, Judge Day, 
prior to Mr. Thacher’s resignation? A. — In his desk. 


1882.] 


SENATE —No. 150. 


491 


Q • —At the probate office? A. — At the probate office, 3 'es, sir. 
As for the balance of that charge, it is true. 

Q. (By Mr. Burdett.) —That is, charge five, that } T ou did not 
audit the register’s quarterly accounts? A. — I did not. 

Q. (By Mr. Thompson.) — And for what reason? A. —He pre¬ 
sented no accounts to me to audit, and that law never came to my 
attention. I am perfectly ready to admit it; or, if it did, I had for¬ 
gotten all about it, so many 3 7 ears had passed since the bankrupt 
law was in operation, and I had nothing to do. There is very little 
insolvency in the count}^ of Barnstable. At any rate, if I ever knew 
about that law, I had forgotten about it. It was passed in April, 
1862, and it was to go into force thirty days from date. At that 
time I was going over the count}’’ of Barnstable and over the first 
district making speeches pretty continually, raising men for the 
army — 

[Mr. Harriman objected ; and, after some discussion, the Chairman 
allowed the following statement to go in : At the time the law was 
passed, the witness was very busily engaged in matters relating to 
the war, and shortly afterwards went to the war.] 

Q. (B}^ Mr. Bruce.) —When did }'ou go to the war? A. — I left 
my home for camp in the middle of August, 1862, and came home 
perhaps about the middle of September, 1863. 

Q. — Did you hold the office of judge of probate all the time? A. 
— Yes, sir. Judge Gardner of Nantucket discharged the duties of 
the office for me. 

Q. (By Mr. Thayer.) —I should like to ask you, if, while you 
were gone that year to the war, the judge who took your place 
audited this man’s quarterly bills according to the law? A. —‘No, 
sir. 

Mr. Harriman. How does he know? 

Witness. I know from inquiry at the office of the State treasurer 
that those accounts were not returned. I have endeavored to find 
them, and they are not there. 

The Chairman. Any thing further, gentlemen? 

Q. (By Mr. Thompson.) —I want to ask you whether your atten¬ 
tion was called to this matter until after the resignation of Mr. 
Thacher as register? A. —It was not. 

Q. — I want to ask you still further with regard to the amount, — 
three hundred and three dollars I think the amount is. W as the 
check pa} r able to your order? A. —Tes, sir, payable to m 3 ' order. 

The Chairman. I don’t see how that is material, Mr. Thompson. 

Mr. Thompson. I supposed it was in explanation. The state¬ 
ment has been made here that Judge Day simply got it from Mr. 
Thacher, the man who ought to have paid it, and turned it over. 


492 


HEARING — JOSEPH M. DAY. [March, 


Mr. Burdett. It might he claimed that that was not true. I 
understand we have the right to put in cumulative evidence. 

The Chairman. There is no evidence that they do claim it. 

Q. —Now, sir, have you any information in any way going to 
show that the State ever lost a dollar by reason of these accounts not 
being returned ? 

The Chairman. I don’t see how that is material. I don’t see 
how it makes any difference whether the State lost any thing, or not. 

Mr. Thompson. I supposed that it did. I may be mistaken, of 
course. It strikes my mind differently. I suppose if the judge 
knew he had failed through inadvertence to do what the statute 
required, if he at once looked after it, and saw that the Common¬ 
wealth received no harm, he would be acting as an honest and faith¬ 
ful man would act with regard to the matter; and he would make all 
the amends w r hich any honest and upright man would be expected 
to make. 

The Chairman. It is in evidence that he did. The evidence has 
shown here that this balance was paid, and paid through Judge Day. 

Mr. Thompson. Through his exertions, — that is all I care to 
have appear. 

Q. (By the Chairman.) —You paid no part of this money, Mr. 
Da}', that w r as turned over to the State treasurer? A. — No, sir. 

Q. (By Mr. Thayer.)— It w'as through your instrumentality, as 
I understand, that Mr. Thacher, who had not kept these quarterly 
accounts, made up any deficit that there was, and paid it to the 
treasurer? A. — It was, sir: I came to Boston with the purpose of 
seeing his returns. 

Adjourned until Thursday, March 23, at 10.15 o’clock. 


1882.] 


SENATE —No. 150. 


493 


THIRTEENTH HEARING. 

Room 10, State House, Boston, 
March 23, 1882. 

The Committee met at a quarter-past ten o’clock, Senator 
Jennings in the chair. 

Mr. Burdett stated that he desired to have appear in the record 
the facts connected with the deed of land by Hiram N}’e, the executor 
of the last will and testament of Betsey Kelley, to one B. F. Clark of 
Barnstable, the sale being made under license of the probate court. 
Judge Day, he said, had testified something in relation to this at the 
last hearing; and, without putting in the deed in full, Mr. Burdett 
continued, I will call attention to the fact I have attested, — this is 
the deed of Hiram Nye; and he recites, in addition to what I have 
said, the order of the court giving him leave to sell in a formal way ; 
and the date of the deed is Jan. 4, 1872. It was acknowledged on 
the same day, and recorded Feb. 16, 1872, and this same estate, 
with the exception of the wood-lot, covered by the writs of entry. 
The purpose is merely to show what became of the wu'its of entry; 
and that, after they were brought, it became necessaiy to sell the real 
estate for the remaining debts ; and the license was obtained, and the 
estate was sold, no attempt being made to collect the costs as the 
matter stood. 


JUDGE JOSEPH M. DAY. 

Direct Examination resumed. 

Q. (By Mr. Burdett.) —Judge Da} r , I will call your attention to 
a matter under the first charge which I omitted at the last hearing; 
namely, Specification No. 12 : that, in 1876, you illegally and improp¬ 
erly acted as counsel in the case of Isaiah Gifford, administrator 
of the estate of Mary Stid. I suppose that means guardian of the 
estate. Judge Day, did you know Mr. Gifford before he was ap¬ 
pointed guardian of Mary Stid ? A. — I did, sir, very well for a good 
many years. 

Q. — Do you remember that he was appointed her guardian? A. 

_I see here it appears by the record. I remember nothing, of course. 

The thousands of cases that have passed under my hands I cannot 
remember. 

Q. —Now, do you remember Mr. Gifford’s coming to you in rela- 


494 


HEARING — JOSEPH M. DAY. [March, 


tion to a note the payment of which was demanded, the note being 
one of Mr. Stid, deceased, husband of Mary Stid? A. — I do, sir. 

Q. —At that time did you know the fact, or recall the fact, that 
Mr. Gifford was the guardian of Mary Stid ? A. — I did not, sir. 

Q. —He has testified already that he only went to Judge Day once 
as guardian after his appointment and before this matter of the note 
was brought to Judge Da 3 '’s attention. 

Q. —Did you act for him at the time he was in the capacity of 
guardian? A. —I did not. I wasn’t aware that he was guardian 
of Mary Stid. I was not aware that she was under guardianship, 
and could not be and should not be unless it was specially called to 
my attention. 

Q. — Was there an} T administration taken out on the estate of Mr. 
Stid? A. —I think not, as appears b}' the record of the court. Let 
me ask } 7 ou to what time you refer ? I think you said the specification 
was 1877? 

Q. —1876 or 1877. A. — I had nothing to do for him in those 
years, except, perhaps, to act on his account as guardian at the time 
she was relieved from guardianship on account of having recovered 
possession of her intellect. 

Q. — Now, in reference to Mr. Gifford’s account, was that assented 
to by Mrs. Stid after she became sane, and when presented for ap¬ 
proval by the probate court? A. — It was, sir. 

[Witness looks over the papers relating to this matter.] 

Mr. Burdett. This account is indorsed, — 

“ The undersigned, being all the parties interested, having examined the fore¬ 
going account, request that the same may he allowed. 

“ MARY STID.” 

and the approval of the judge, dated Feb. 13, 1877, recites that — 

“ The foregoing account having been presented for allowance, and notice 
having been given thereon as ordered, and no objection being made after it was 
examined and considered by the court, it was decreed that the same be allowed 
and recorded. 

“ J. M. DAY, 

“ Judge of Probate Court.” 

Q. —Judge Da} T , did you ever give Mr. Gifford, as guardian of 
Mary Stid, an 3 7 advice whatever, or receive from him any compensa¬ 
tion, or make against him an 3 T charge? A. —Never ! 

Mr. Burdett. I think that disposes of the specifications under 
the first charge. / 

Mr. Thompson. Specification 14, was that waived?— There was 
no Specification 14, I think. 

Mr. IIarriman. We haven’t offered any evidence on any such 
charge. 


1882.] 


SENATE —No. 150. 


495 


Mr. Burdett. The same is true of Nos. 5 and 14. 

The Chairman. I understood, Mr. Wadleigh, that you waive the 
14th specification under the first allegation? 

Mr. Wadleigh. I am not prepared to say at this moment. 

Mr. Burdett. Having rested his case, I don’t see how he can 
help himself. 

Mr. Wadleigh. I am not prepared to say, Mr. Chairman, that 
we waive this. Of course we have rested our case. What evidence 
there may' be, I cannot say at this moment. 

Q. (By Mr. Burdett.) —Is there an} T thing else in reference to 
.this matter of Mary Stid? A. — Yes, sir : I desire to say that it is 
my strong impression that Mr. Gilford is mistaken in relation to the 
time he called on me regarding the note, and that it was before any 
guardianship had been taken with Mary Stid. I cannot remember 
positively that it is so, but that is the strong impression on my mind. 

Q. — Now we will pass to the sixth charge, taking first that part 
w r hich alleges, that in 1879, in Davis’s hotel in Falmouth, you were 
intoxicated under circumstances calculated to bring your office into 
contempt. What have you to say to that charge? A. — It is a false¬ 
hood ! 

Q .—Can you say whether, or not, you were in the town of Fal¬ 
mouth in June, 1879, at all? A. — I was not, sir. 

Q. —Had you any business to call you there? A. —No, sir. I 
will say further, that for ten years, excepting on one occasion when 
I was at Falmouth with the county commissioners, the selectmen of 
Sandwich, and the counsel for the Old Colony Railroad, in relation to 
the laying out of a road at grade with the Old Colony track, I have 
never been in the town of Falmouth excepting to hold probate court 
in the month of November of each year. 

Q. — Is the probate court held, or has it been held, at any other 
time than the month of November of each year ? A. — No, sir. 

Q. —When was this one occasion you speak of when you were in 
• Falmouth at another time than when you were there at the probate 
court? A. —As I have just stated, when — 

Q. —I know that; but how long ago was it? A. — I should think 
during last year some time. 

Q .—Do you remember what time of the } T ear it was? A. — I 
cannot say : I am so much on the road that I cannot tell about the 
times. 

Q. — Did you ever see David Bursley in the town of Falmouth, to 
your recollection? A. —Never, to my recollection, in my life. 

Q. — Were you in the town of Falmouth during the holding of 
the Congregational convention, or whatever it was called, in 1879? 
A. — No, sir. 


496 


HEARING — JOSEPH M. DAY. [March, 


Q. — Did you attend that c'onvention? A. — No, sir. 

Q. —Were you a delegate to it? A. —No, sir. 

Q. — Or have any connection with it whatever? A. —No, sir. 

Q. — Was there any foundation whatever for the charge that you 
were there in any condition ? 

The Chairman. One moment. 

Mr. Burdett. No matter: perhaps we have covered it. 

Q. — Do you recall any thing unusual in the probate business con¬ 
nected with the town of Falmouth, and whether or not there was any 
great amount of business there to which } T our attention was specially 
called ? 

Mr. Harriman. I don’t know how that is material? [Excluded.] 

Q. (By Mr. Burdett.) —In 1878, on the cars, near Cohasset 
Narrows — I am unable to say whether there is any evidence on 
that point, or whether they make any claim — 

Mr. Harriman. We do. 

Mr. Burdett. Is that in reference to the testimony of Mr. N} r e ? 

Mr. Harriman. Mr. Messer. 

Q. (B} t Mr. Burdett.)— Do you remember meeting Mr. Charles 
H. Nye on the platform at Blizzard’s Bay two j’ears ago, or in that 
neighborhood ? A. — No, sir. I met him a great many times. I 
don’t remember any particular time. I do know this, however, that 
Mr. N} T e never saw me at Buzzard’s Bay, or any other time, in any 
degree whatever under the influence of intoxicating liquor. 

Q. — Do you have occasion to wait at Buzzard’s Baj^ in the after¬ 
noon, excepting when you are going to Falmouth to hold probate 
court? A. —When I am going home, I have to wait there also. 

Q. —That would be, if 3 ’ou were going to probate court at Fal¬ 
mouth, the month of November, would it not? A. —Yes, sir. 

Q. —Then, referring to November, 1878, Judge Day, when you 
were at Falmouth to hold probate court, where did 3 r ou stop? A. — I 
stopped at Baker’s Hotel kept b} r Mr. Elihu Davis, by the direction 
of the county commissioner. No, I stopped there,—that was the 
3 T ear before we were directed by the county commissioners to hold 
probate court at Baker’s Hotel, and I stopped there,—but the court 
was held at the Succanesset House. 

Q. —Do you remember who you saw at Baker’s Hotel in 1878? 
A. —I saw the family there. 

Q. — Whose family? A. — Mr. Davis’s. I saw Mrs. Davis — 

Q. — Was Miss Davis there? A. —Mr. and Mrs. Davis and their 
daughter. 

Q. — At that time were you in any degree under the influence of 
intoxicating liquor ? A. — No, sir. 

Q .— Now, referring to the case spoken of by Mr. Henry B. Hop- 


1882.] 


SENATE —No. 150. 


497 


kins, beginning at p. 361. Do you know him? A. — No, sir: I 
never saw him, to my T knowledge, until I saw him the other day in 
this room. 

— And what have ymu to say in relation to his statement of 
meeting 3011 in the cars between Wareham and Yarmouth? You 
heard his testimony, didn’t you? A. — I heard his testimony. I 
cannot say any’ thing .about that, of course, for I cannot say who 
may T have seen me on the cars, I have been on them so often between 
Wareham and my own home ; but it is quite likely I should not be 
going below my 7 own home in the night-train. 

Q. — He spoke of y T our walking through the car. What is your 
habit when walking through, while the cars are in motion? A. — I 
walk with a cane in my hand, and steady’ my’self by’ the seats with the 
other hand ; and I am obliged to do it. 

Q. — Why’? A. — From lameness. 

Q. — Lameness? From what cause is that contracted? A .— 
Well, sir, I suppose from rheumatic tendencies that were aggravated 
very much by the exposures of army’ life, and nothing else. 

Q. — Are there any r times in which you are suffering pains from 
this source? A. — All the time some, more or less, and, on other 
days, very intense pain. 

Q. — Were y 7 ou at any T time — to put the question broadly — on a 
train of cars, or walking through them, under the influence of liquor, 
— under the influence of intoxicating liquor? A. — Never in my 
life. 

Q. — And did anybody ever see y T ou in any such condition? A. — 
No, sir. 

Q. — Now, we will take the 7th specification in reference to the 
case of Mary 7 C. Paddock, that you stated at the last hearing. 
Now, in reference to the case of Mrs. Clarissa Nickerson, executrix 
of the will of Henry Nickerson. Have you any recollection of her 
fainting in your court? A. —Not the slightest. 

Q. — If she had fainted, was it from any remark or action of yours ? 

The Chairman. If he has no knowledge of the matter, how can it 
be of use to ask that question? 

[Mr. Burdett promptly replied, acknowledging the pertinence of 
the Chairman’s interruption and question.] 

Witness. I can only say’, that, if she had fainted under the cir¬ 
cumstances she states, I must have seen her, I think. 

q (By Mr. Burdett.) —Referring once more to the case of the 
Goodspeeds, I w r ant to ask you in relation to a receipt which appears 
on the agreement or contract. (See p. 148.) How did that receipt 
come to be written there in your handwriting, and signed by Mary 
M. Goodspeed? A. —I placed it there myself for the protection of 


498 


HEARING —JOSEPH M. DAY. 


[March, 


Mr. Proctor, in order to have something on the contract, and to 
show that he had paid so much on the purchase. I supposed I was 
acting as much for Mr. Proctor as any of them. 

Q .—For whose protection was that? A .—Entirely for the pro¬ 
tection of Mr. Proctor. 

Q. — Is there an}" thing else with reference to that matter that you 
desire to say? A. —No, sir. 

Q. —In reference to the charge made against young Charles Good- 
speed, of fifty dollars, did you desire to state more fully in reference 
to those charges? A. —If it is material, I will. I cannot, of course, 
state every particular now. 

Mr. Harriman. Haven’t you gone all over that, Mr. Burdett? 

The Chairman. He has stated fully on that [referring to Judge 
Day]. , 

Q. (By Mr. Burdett.) —Let me call your attention to the minute 
on the bottom of the third page of the account of Isaiah Gilford, 
guardian of Mary Stid. I desire to ask you what you know of that 
minute of $1,135.73 ? A. — I put it there myself, of my own motion, 
without a suggestion from any one, because Mary Stid was not in 
court, and Mr. Gifford informed me that the balance that appears to be 
due to Mary Stid by this account still remained in his hands. I put 
that minute there so that if any thing happened to Mr. Gilford before 
the money was transferred to Mary Stid formally, that I should know 
that the money had not been given to her, and she would have an 
opportunity to claim it from Mr. Gifford’s estate. 

Q. — Perhaps I had better read this : — 

“The above amount of $1,135.73 is retained by Isaiah Gifford for manage- 
ment, as agent of said Mary Stid, as per the certificate or receipt of date Feb. 
13, 1877, receipt to be handed to Mary Stid by I. Gifford. 

“J. M. DAY, 
“Judge of Probate Court.” 

A. — And I wrote the receipt that he was to hand to Mary Stid in 
order that she might have an evidence that the money was in his 
hands belonging to her. 

Q. —Now, in reference to the ninth charge. Did you hold the 
office of collector of customs for the district of Barnstable in the 
year 1861 ? A. — Yes, sir, for a short time. 

Q. — Did you resign the office of judge of probate ? A. — I thought 
I did, sir. 

Q. — What is the date of your commission as collector of customs 
at Barnstable? A. — My temporary commission is dated May 27, 
1861; my permanent commission — I cannot tell, sir — there is 
nothing in the commission to indicate — my permanent commission 
is dated the twenty-third day of July, 1861. 


1832.] 


SENATE —No. 150. 


499 


Q • —Now, sir, while holding that office, did you corruptly demand, 
or receive from any officer or officers recommended or appointed by 
you as such collector, any sums whatever? A. — No, sir. 

Q. —Did you resign said office for a pecuniary consideration? A. 
— I did not, sir. 

Q • —Will you state now, judge, what the facts are in reference to 
your resignation of the office of judge of probate, at the time you 
were appointed collector for the district of Barnstable? A .—Yes, 
sir: I resigned, as I supposed, my office of judge of probate and in¬ 
solvency for the count}’ of Barnstable. 

Q. (By the Chairman.) —When? A. — Immediately, sir, upon 
receiving m 3 ’ temporary commission. 

Mr. Burdett. Go on. 

Witness. Gov. Andrew nominated a gentleman to the office. 
The nomination created a great deal of commotion and trouble — 

Q. (By Mr. Wadleigh.) —Who was that? 

Witness [continuing, apparently not heeding the question].— 
And steps were taken in the count}’ of Barnstable, — they came here 
to Boston and had several hearings before the Council, — and finally 
the nomination was rejected. I supposed, of course, that another 
nomination would be made, and that I should be relieved from the 
office ; for I was expecting, all the time, that a nomination to the 
office of judge of probate and insolvency would be made, and I 
should no longer be the judge. Some time after the rejection of the 
name of Mr. Ebenezer Bacon, — who was the gentleman nominated 
to the position, — I received the letter which I hold in my hand, from 
Gov. Andrew. 

Q. (By Mr. Burdett.) — Will you read the letter? 

A. [Witness reading] : — 

Commonwealth op Massachusetts, 
Executive Department, Boston, Sept. 13, 1861. 

To the Honorable Joseph M. Day. 

My dear Sir, — On looking at your note of resignation of your office as 
judge of probate and insolvency in the county .of Barnstable, I observe what 
had originally not attracted my consideration, — that it is so phrased as to take 
effect only on the appointment of your successor. I am satisfied that this does 
not amount to a legal resignation, from the fact that it is not absolute, but is 
only conditional. 

I nominated Mr. Bacon without adverting to this consideration. But, if I 
am right, and the attorney-general concurs with me in the opinion that the 
nomination was not legally made, I cannot execute ray duty in relation to an 
appointment for the judgeship until you shall have presented an absolute resig¬ 
nation. 

I am faithfully and sincerely your friend and servant, 

JOHN A. ANDREW. 


500 


HEARING —JOSEPH M. DAY. [March, 


Q. — On receipt of that, what did you do? A. — Upon receipt of 
that letter I came to Boston, and had a long interview with Gov. 
Andrew. He spoke of the complications in relation to the matter, 
and I remember distinctly the suggestion he made to me — 

Mr. Wadleigii. I don’t know, Mr. Chairman, what the subject is. 
Of course this is not evidence. 

The Chairman. I shall rule it out. 

Q. (By Mr. Burdett.) —Did you have an interview with Gov. 
Andrew? A. — I had. 

Q. — Was it a short or a long interview? A. — It was a long one. 

Q. — What was the subject of the interview? A. — It was the 
question of my resigning as collector, and holding on to the position 
of judge of probate and insolvenc} T . 

Q. — What was the result of the interview ? A. — The result of 
the interview was, that I said to Gov. Andrew, at the end of that 
quarter — 

The Chairman. State the result of it. 

Witness. The result was, at the end of the quarter 1 resigned my 
position as collector of the port of Barnstable. 

Q . (By Mr. Burdett.) — Was that at the request of Gov. Andrew 7 ? 
A. — It was, sir. 

Q. — I want to know what the immediate results of the interview 
were ? Whether any determination was come to, at the end of that 
talk, in regard to that matter? A. — Yes, sir, before I left the State 
House. 

Q .—What was it? A. —That I should resign the collectorship 
at the end of the quarter. 

Q. —When was the end of the quarter? A. — October, I think : 
I can tell in a moment. [Referring to paper.] Yes, it was in Octo¬ 
ber. I have a communication from Mr. Sargent, commissioner of 
customs, dated Nov. 7, 1861. 

Q. — Did you resign the office of collector of the port of Barnsta¬ 
ble in consequence of this interview with Gov. Andrew ? A. — I 
did, sir ; and solely on account of that. 

Q. —Was there any other consideration or inducement which led 
you to determine to resign that office? A. —None whatever. 

Q. — I understand you to say that was determined definitely be¬ 
fore you left the State House that day? A. — Yes, sir. 

Q. —Was there any agreement between you and anybody else that 
you should resign that office? or was an}' inducement held out to you 
by anybody else to do so? A. — Nothing except what took place 
between Gov. John A. Andrew' and myself. 

Q. —Your answer is not to what I ask. After this interview with 
Gov. Andrew, did you have any interview with Mr. Swift, your suc¬ 
cessor? A. — I did, sir. 


1882.] 


SENATE —No. 150. 


501 


Q. — Were you acquainted with Mr. Swift at that time? A .'— 
Very well, sir; and had been for years very intimate vfrth him. 

Q m Ee was an intimate friend of yours, was he? A. —Yes, sir. 

Q‘ Will you state the result of the interviews, or interview, that 
you had with Mr. Swift? 

Mr. Harriman. Well, now, how is that competent? Mr. Swift 
is living. 

Mr. Wadleigh. Well, let him answer. 

Witness. I cannot remember when it was : I cannot give any 
dates. This is laying back so far in the past that I haven’t thought 
of it for more than twenty years. 

Q • — Was it before or after you saw Gov. Andrew? A. —After. 
1 went to Mr. Swift, told him what took place between Gov. Andrew 
and myself, and that at the end of the quarter I should resign. 

Q • — Anything else? A. — In the course of our conversation — 
I don’t know how it came about, I am sure, I cannot tell — I made 
some suggestion to Mr. Swift that I was giving up an office where 
the income was somewhere from twenty-five hundred to four thou¬ 
sand dollars ; that some consideration I was entitled to; and he 
agreed to it at once, without any hesitation whatever, purely a 
friendly and personal matter between Mr. Swift and myself. 

Q. — Was an}" concealment made between you and Mr. Swift about 
the result of the interview between you? A. —No, sir ! On the con- 
trar} T , Mr. Thomas D. Elliott, then member of Congress from that 
district, was cognizant of the whole matter. 

Q. —Was any demand made by you upon Mr. Swift for any con¬ 
sideration for your resignation? A. —Never, sir. 

Q. — Or any agreement that he should pay any thing for } T our res¬ 
ignation? A. —Never, sir : m}’ resignation was fixed upon ; and Mr. 
Swift was the only person in the county of Barnstable that was in a 
position to claim or take that office, and was, at the time I was ap¬ 
pointed, the opposing applicant for the office. 

Q. —Were you on good terms with him, or not? A. —Entirety. 

Q. —After Mr. Swift was appointed collector, did he pay you any 
money? A. —Never a cent, sir. 

Q. — Did Mr. Swift, I say? A. — No, sir, Mr. Swift never did. 

Q. — Did anybody? A. —Yes, sir. 

Q. — For Mr. Swift? A. —I suppose it was for Mr. Swift by Mr. 
Knowles, of Yarmouth, his brother-in-law. 

Q .—Do you remember the amount, or anywhere near it? A .— 
I cannot tell; I cannot remember ; it is impossible. It is merely an 
impression, but it seems to me it was in the vicinity of eighteen hun¬ 
dred dollars ; but I cannot remember the amount. 

Q. (By Mr. Thayer.) —That is what Mr. Swift gave }’ou? A. — 
No, sir: Mr. Knowles. 


502 HEARING —JOSEPH M. DAY. [March, 

Q. (P.v Mr. Hill.) —That, you supposed, came from Mr. Swift? 
A .— I supposed it did, sir. 

Q. (By Mr. Burdett.) — Now, referring, Judge Day, to the depo¬ 
sition of David Bursley, in the first place let me ask you, if during 
1860 or 1861 you were in the habit of riding around the county with 
him? A. — I was not, sir. I had no business relations with him 
whatever. 

Q .— Was he deput3 T -sheriff at that time? A. — He was not, or 
sheriff either; and all the business relations I had with David Bursley 
in my life grew out of his official position as deput} T -sheriff. In the 
year 1861 he was neither sheriff nor deput3 T -sheriff, and had not been 
for two 3 T ears at least. 

Q. — Well, then, did 3 r ou talk about your appointment, or probable 
appointment, as collector when 3^011 were riding over the Cape? A. 
— No, sir. 

Q. — And did 3 r ou say, when Mr. Phinne3 r ’s term was out3 r ou would 
like to be collector? and did he state that he would not have the face 
to go about the count3 r to help you in getting the appointment while 
judge of probate and insolvent? A. —No, sir. I do not mean to 
sa3' I did not talk with him about being collector. I have no doubt 
I did. But I have to say this : that I never said I wanted that when 
Major Phinney’s term was through. In those da3’s, at least, we did 
not wait till the term of the opposite paidy was through before we 
took the office. I don’t know how it is now. 

Q. —Was any thing said between you as to your relations with the 
Munroe and Swift families? A. —Never one word, sir. The relations 
between m3’self and the families he speaks of were entirety pleasant, 
and there never had been the slightest trouble between us in an3 T wa3 T ; 
and what he sa3’s in relation to that is not true. Nor did I ever say 
a word to him, or he to me, about Mr. Munroe’s indorsing Mr. Swift’s 
notes. 

Q. —Judge Day, had you ever any conference with him in relation 
to your arrangement with Mr. Swift, before it was made? A. —No, 
sir. 

Q. — Did you consult him in any way as to the best method of 
doing it? Or as to whether 3'ou should do it, or not? A. — No, sir. 

Q. — Was any one consulted about the matter before it was done, 
except 3’ourself and Mr. Swift? A. —No, sir, except in my inter¬ 
view with Gov. Andrew. 

Q. — Did you tell him, before 3 r ou were appointed collector, to keep 
the run of his expenses, and you would pa3 T all his expenses, and 
appoint him inspector? A. —I did not, sir. 

Q. — Did you say to him, when he presented his bill, “ Oh, tush ! 
let that go towards your office, like the rest of them”? A .—No, 


sir. 


1882.] 


SENATE —No. 150. 


503 


Q • — Did lie present a bill of seventy-four dollars for expenses? 
A. — He never did, sir, and could not have incurred ten dollars of 
expense in all that he did. 

Q .— Now, before you were appointed, did you and Mr. Burs ley sit 
down, and go over the matter of who were to be appointed to those 
various places? A. — 1 do not know, sir : I cannot say. 

Q. — Was any list made by him in your presence of the officers 
with a statement on the list that the}’ were to be assessed on appoint¬ 
ment? A. — No, sir. 1 do not mean to say there was not a list of 
officers made out. I cannot swear that is not so, for I have forgotten ; 
and I know that it would be very likely indeed, considering the rela¬ 
tions existing at that time between Bursley and the Republican party, 
that I should talk over the matter of appointments with him, as I 
should with others who were active in the part}’. 

Q. — Is this true: that you made out a list of officers, and what 
offices they were to have, and that you appointed all that David 
Bursley recommended to you at that time, and then wanted to figure 
out how much each one should be taxed to pay your expenses ? A. — 
No, sir. 

Q. —And did you at that time assess them from fifty to a hundred 
dollars? A. —No, sir. 

Q. — No sum whatever? A. — No, sir, no sum whatever. I 
never assessed a man a dollar. 

Q. —Did you resign your commission as collector for a pecuniary 
consideration? A. — Never, sir. 

Q. — And, under such circumstances, did you ever demand of any 
applicant the payment of any money, either before or after his ap¬ 
pointment, as a consideration for his appointment? A. — Never, sir, 
either as a consideration for his appointment or retaining his office. I 
never demanded a cent of any man under any circumstances. 

Q. — Well, did these officers make any contributions, before their 
appointment, to the political expenses of the year? A. —I have no 
doubt they did, sir, not only of that year, but perhaps former years. 
I have no doubt they did. 

Q. — Did any money which they contributed inure to your benefit? 
A. —Only in one way, sir,— as making up, partially, what I myself 
had paid out in the first instance for those very things. 

Q. — Have you any recollection as to the amount that you were 
out of pocket by reason of your payment of the political expenses 
attending that campaign, and the change of officers there from Dem¬ 
ocratic to Republican? A. — Well, there is a strong impression on 
my mind, — for I kept no account of those things, — that, over and 
above all contributed by the officers through the district, I was some¬ 
where in the vicinity of three hundred dollars out of pocket for pay¬ 
ing the political expenses of the county of Barnstable. 


504 HEARING —JOSEPH M. DAY. [March, 

Q. — And was whatever money yon received used for that purpose? 
A. — Yes, sir. 

Q. — And no other? A. — None. 

Q. —I have already asked 3’ou as to the fact, I think, whether, or 
not, 3’ou consulted this man Bursley once or frequently in reference 
to 3’our resignation, or on what conditions you should resign? A. — 
Never a word : I never asked his advice on that subject. I told him 
distinctly I should resign as judge of probate and insolvency for the 
count3’ of Barnstable ; and he was instructed b3 r me, when he went 
down the Cape with petitions for ury appointment, to sa3 T that I 
should resign the office of judge of probate and insolvency. It was 
not at his request; and he never made an3’ suggestion, or had any 
scruples as to the titness of it. 

Q. —I was speaking of your resignation of the office of collector?. 
A. —No, sir. 

Q. — Did 3’ou ever sa3 r to him if you could make a good trade with 
Mr. Swift, or an3 T thing in relation to a trade with Swift about your 
resignation of this office? A. — I never did. I stated to him that I 
should resign at the end of the quarter, and that he objected to on 
the ground that Mr. Swift was angry with him for things that he had 
said in relation to Mr. Swift. He (Bursley) was distributing the 
petitions for my appointment, and he was afraid that Mr. Swift 
would remove him as soon as he got into office. I said to Mr. Burs¬ 
ley that I would see Mr. Swift in relation to that, and I did. I 
never heard any other objection from him in relation to the matter. 

Q. — Did 3’ou ever say to him before you resigned that you had 
fixed the business up with Mr. Swift, and you had divided the emol¬ 
uments of the office; that Mr. Swift had arranged to keep all the old 
officers in, and would not turn them out unless they didn’t do their 
duty in the office? A. — No, sir : there was no such agreement with 
Swift. I have no doubt I said this to Mr. Swift: that the gentle- 
men who had been appointed to office were as much his friends as 
they were mine, they were all good, faithful members of the Repub¬ 
lican party, and, as long as they discharged their duties, I hoped he 
would not turn anybod3 T out. 

V 

Q. —Did you have any agreement with him on that subject which 
was conditioned on your resignation? A. — No, sir. 

Q. — Did you go to him and say that Munroe would not indorse 
the notes, and repudiated the whole transaction? A .—No, sir:. 
Mr. Munroe never had any thing to do with it to my knowledge, in 
an3 T wa3 T in the world. 

Q. — About Charles G. Rodman, who was one of the appointees 
under you as collector. Have you any recollection about Mr. Rod- 
man? A. —None whatever. 


1882.] 


SENATE —No. 150. 


505 


—Well, should a full quarter’s pay have been due Mr. Rodman 
after the end of the first quarter, if he was appointed when you came 
into office? A. — No, sir: simply because I didn’t come in until 
some time after the quarter commenced, though not perhaps in the 
middle. If Mr. Rodman’s bill was made out as he states it was, 
there must have been a deduction from it. 

Q .—That is, he wasn’t entitled to the full quarter’s pay? A. — 
Pie was not entitled to the full quarter’s pay. 

Q .—Were any of the officers connected with the Barnstable cus¬ 
tom-house paid at the court-house? A. — No, sir. 

Q. — Could it have been, for an } 7 reason, drawn at the court-house? 
A. — No, sir. 

Q. — Then, referring to the testimony of Mr. Gilbert Crocker, do 
you remember ever having taken a note from Gilbert Crocker? A. — 
I never did. I never had it. Who he made it to, I don’t know. 

Q. —Have you any thing further to sa } 7 in relation to the Rodman 
case? A. — Nothing but what I just said. 

Q. — Is there any thing else in relation to the custom-house matter 
you desire to add? I don’t think of anything myself. A. —No, 
sir. 

Q. —Where does Mr. Charles F. Swift reside? A. —Yarmouth, 
Yarmouthport. 

Q. —Where does Mr. Walter Cliipman reside? A. — Barnstable. 

Q. — What is his business? A. — Deputy-collector with Mr. Goss, 
at present collector of the port of Barnstable. 

Q. — Are }’ou on good terms with him? A. — Mr. Goss is not 
with me, sir. I don’t know why ; but he is very bitter towards me. 

Q. — Now, leaving that matter, and taking up a few miscellaneous 
things, let me ask you if the vouchers of administrators are filed in 
the probate court? A. —Never, sir. There is nothing presented at 
all unless there is some conflict over the accounts. Where an account 
is signed by all the parties in interest, the account is passed, as a 
matter of course, without examination. 

Q. —Mr. Bradford L. Crocker spoke of a judge of probate named 
Miller at Wareham ? A. — Yes, sir. 

Q. — Do you know any such judge of probate? A. —No, sir. 

Q. —Now, in reference to that same case, do you remember Mr. 
Nye’s coming to you, and asking for advice about removing a barn? 
A. — I do, sir, very well. 

Q .—What was said at that time? A. — I said to Mr. Nye that 
the property on which the barn stood was devised to the Evangelical 
Society in Ilyannis ; and that, without the consent of the society, he 
had no rio-lit to remove that barn, lie said he had the consent of the 
Evangelical Society; and I then said, if you have the consent of the 
society, there is no trouble about your removing the barn. 


506 


HEARING—JOSEPH M. DAY. [March, 


Q. — Did 3*011 get any pay from Mr. Nye, or make any charge, for 
giving him that piece of advice? A. — No, sir. 

Cross-Exam ination . 

Q. (B} r Mr. Wadleigh.) — Judge Day, I want to call your atten¬ 
tion, in the first place, to the testimony of Bradford L. Crocker. Do 
I understand that you testified positively that 3*011 never received five 
dollars which he says he paid to you? A. — No, sir: I did not so 
testify. I testified that I had no recollection of ever receiving a cent 
from him; but I know this, that I never did receive a cent or a dol¬ 
lar from him for advice given to him as executor of the estate. 

Q. — When 3*011 sa3 r 3*011 can testify positivefy as to that, what 
is the ground on which you make that statement? A. —This : that 
I know I never did a thing of that kind in 1113* life. I alwa3*s sought 
to avoid it in every w*a3* in 1113* power; and I know I advised him in 
relation to other matters that w r ere not connected with his duties as 
executor. 

Q. — How was it with reference to the letter which he says he 
received from 3*ou? A .—I sa3 T , sir, there is no such letter, and 
never was. I never wrote to Bradford L. Crocker, requesting him to 
pa3^ me an3" sum of mone3^ to settle an3 T matters between him and 
anybod3* else in this world. 

Q. — Did you w r rite him at all? A. — Not that I remember, sir. 

Q. —Will 3*011 swear positively that 3 T ou did not write him such a 
letter as he sa3*s he received? A. — Yes, sir. 

Q. — But 3*ou say you will not swear positivefy that 3*011 did not 
write him at all? A. — I will not. 

Q. — Did 3*011 write him any letter saying in substance that the 
matter could be settled? A. —Not that I know of, sir. 

Q. —Would 3*011 state positivefy that you did not write him such a 
letter? A. —Well, sir, I don’t know that I understand what matter 
you refer to. 

Q • —This matter which he testified to. A. —I didn’t understand 
him to testify to any matter. 

Q. — Didn’t he? A. —No, sir, except that there was something 
between him and the other executor. 

Q. — Did you w*rite to him that any settlement could be made 
about an3 T thing? A. — Not that I remember of. 

Q. —Would you state positivefy that you did not? A . —I would 
state positivefy that I never wrote him that it could be settled by the 
payment of a sum of money to me. What questions there may have 
been between him and the other executor I cannot now remember, so 
that I cannot say positivefy that there was no letter written by me to 
him; but I would say positively that I never wrote him a letter, 


1882.] 


SENATE—No. 150. 


507 


stating that the matter between him and the other executor could be 
settled by paying a sum of money to me. 

Q • — Were you acting for the other executor in any way that 
would lead to your writing him such a letter as he stated you did 
write? A. —Not that I am aware of. 

Q • — Could you say you were not? A. — I could say, to the best 
of my knowledge and belief, I was not; for I know of no question of 
that kind that arose between them. 

Q •—Now, in regard to the Goodspeed payment of fifty dollars, 
— what was that paid for? A. — It was paid for advice given to Mr. 
Charles Goodspeed for matters not relating to his mother’s duties, 
either as administratrix or guardian, or Mr. Whitman’s duties as 
guardian of the other child. 

Q. — What was the subject-matter of that advice? A. —Well, 
sir, there were a good man}’ matters : I cannot enumerate them. I 
can give some of the principal ones ; but I cannot enumerate, by any 
means, the advice I gave to young Mr. Goodspeed in relation to mat¬ 
ters that were not connected with the settlement of the estate. I will 
give such as I can'remember, sir, if you desire it. 

Mr. Wadleigh. I should like to hear them. 

Witness. One matter was the question of his father’s right to a 
certain homestead in the town of Sandwich, which had been conveyed 
to his father upon certain conditions ; and the question was as to his 
father’s claim to that property. That was a matter that I was 
engaged over for some two or three days; and I made up my mind in 
relation to it, and gave him the result. 

Q. — Any thing else? A. —Yes, sir: there was another question 
in relation to the title to some land that had been bought by his 
father at a tax-sale. There was another matter in relation to a 
threatened prosecution of him by Mr. Proctor for getting money from 
him by false pretences, and an engagement to defend him. There 
was another matter in which Mr. Proctor threatened to bring a com¬ 
plaint against him for larceny of a valuable carriage-robe and a 
valuable whip, and an engagement to defend him should the com¬ 
plaints be made. There was another matter in relation to the law as 
to deposits in savings banks in the names of parties, as to the rights 
of the depositor holding the deposits which had been made in the 
names of other parties. 

Q. — About this threat of a criminal prosecution: Mr. Proctor 
threatened to prosecute him on account of something which he did 
according to your advice, did he not? A. —No, sir. 

Q. — Well, was it something that he did with reference to this per¬ 
sonal property that was in controversy? A. — No, sir; it was this: 
it seems, that before this came out, during the controversy, before the 


508 


HEARING —JOSEPH M. DAY. [March, 


contract of sale was entered into between Proctor and these parties, 
I think several hundred dollars’ worth of property had been sold by 
the administratrix, and the money received for it. There was also a 
controversy, I think, over some ha} T that was in the barn ; and Mr. 
Proctor insisted upon it that Mr. Charles Goodspeed had obtained 
some mone3 T from him in Mansfield b} T the false pretence that all of 
the property named in the inventory was still in the hands of the 
administratrix, and that he was to have it under this contract of sale. 

Q. —Now, were not all these matters of controversy with regard 
to the real and personal property belonging to the estate of his 
father? A. — Oh, } T es, sir! the real estate belonging to his father, 
and the personal estate, as I understood him, was the personal estate 
that had been named in the inventoiy, and that Proctor insisted upon, 
as the property wasn’t there, that he should account for it to him. 
Charles insisted that he gave Proctor notice that those articles had 
been sold, and were, therefore, not to be regarded as the subject of 
the contract of sale. 

Q. —Well, the claim was made by Proctor that the personal prop¬ 
erty included in this agreement made by }'ou, should be accounted 
for, wasn’t it? A. — I don’t know that, sir. His claim was, that the 
property should have been sold before he made the contract with the 
administratrix and guardians. His claim was, that that property 
should be accounted for at its value, and that he was to be compen¬ 
sated for the sale which had taken place previous to his contract; 
and Mr. Charles Goodspeed insisted that he had given him notice 
about that, and that Mr. Proctor understood that that property was 
not at all within the terms of the agreement. That was the contro¬ 
versy, and it was upon that that Mr. Proctor threatened to have him 
indicted for getting money b}^ false pretences. 

Q. — Didn’t he claim, that, under this agreement, he was entitled 
to it? and didn’t they claim, that, under the agreement, he was not 
entitled to it? A. —No, sir. He claimed that he was entitled to it 
because it was in the inventoiy; and Mr. Charles Goodspeed con¬ 
tended that he was not, because it had been sold before the contract 
was made, and that Mr. Proctor had full notice of it, and knew of 
that fact. 

Q. —Now, Mr. Proctor made his claim under this contract which 
you drew up, didn’t lie? A. — I don’t know, sir. 

Q. —Didn’t you so understand it? A. —I don’t know whether I 
did or not. 

Q. — What other claim had he to any property belonging to that 
estate, except under this agreement which you drew up? A. — I 
don’t know, sir. 

Q. — Do you know of his having had any? A. — I don’t know, 
sir. 


1882.] 


SENATE —No. 150. 


509 


Q■ — Wasn’t this simply a controversy whether, under the agree¬ 
ment which yon drew up, Mr. Proctor could legally claim this per¬ 
sonal property to which you refer? A. — No, sir. 

Q • —According to the inventory? A. — Not as I understood it. 

Q‘ — What was it? A. — As I have stated, Mr. Proctor contended 
that the property named in the inventory, that had been sold before 
he made the contract with Mrs. Goodspeed and with Mr. Whitman, 
was to be accounted for to him. 

Q. —Under what? Under the contract? A. —I don’t know, sir : 
I don’t know any thing about that. 

Q. — Don’t you know whether the claim was made under that con¬ 
tract? A. — I don’t know. 

Q .—Did you ever hear any 7 suggestion at all, from any quarter, 
that he had any claim on any of the Goodspeeds’ property, except 
under the agreement which you drew up? A. —Why, yes : he had a 
claim under a certain memorandum that lie had. 

Q. — This w T as but a memorandum which you reduced, or under¬ 
took to reduce, to writing? A. —It was a memorandum which I 
undertook to reduce to writing. 

Q .—After you had reduced that to writing, his claim w r as not 
under the memorandum, but it was under the writing which you drew 
up, wasn’t it? A. — I don’t know, sir, about that. I can’t tell you 
about that. I can’t tell you upon what ground he put his claim. 

Q. —Did he ever have any 7 claim, except that which was included 
in this memorandum, and in the agreement which you drew up upon 
it? A. —I don’t know. 

Q .—Did you ever hear any? A. — I don’t know that I did: I 
don’t know any thing about it, one way or the other. 

A. —Now, this fifty dollars’ payment covered all these matters 
which you refer to, — this two or three days’ work which you say you 
did for Charles, and the matter of dues in regard to criminal prosecu¬ 
tion? A. —Yes, sir: covered that and a variety of other things be¬ 
sides. 

Q .—Did you keep any books of account? A. —No, sir, not of 
those matters. 

Q .—I ask you whether you kept any books of account? A .— 
Well, no, sir: I didn’t keep a very strict book of account. A good 
many things never went on to my books at all — 

Q .—I ask you whether you kept books of account, and, if so, 
what? A. — Well, I keep a book, upon which some of the accounts 
of my business go ; and I keep but one. 

Q. — In what form is that, —day-book or ledger? A. —It is in 
the form of a day-book. 

Q. — Do the charges made follow each other in the order of time ? 


510 


HEARING —JOSEPH M. DAY. 


[March, 


A. — No, sir: they do not alwaj's. Sometimes, for instance, when 
I suppose a matter is going to be paid, I let it linger along sometimes 
for a month or two months ; and, if I find it is not going to be paid, 
I go and make a minute on m} T book so as to remember it. 

Q. — Had you an}^ thing upon your books at all that this fifty dol¬ 
lars’ charge applied to ? A. —Not a line, sir ; not a word. 

Q.—When he paid that money to 3*011, or at the time when 3*011 
presented the bill, was there an3 r conversation between him and 3*0111- 
self as to how and I13* whom that pa3*ment should be made ? A. — 
Not that I remember of, sir. 

Q. —Will you state that there was not some conversation as to 
how it should be divided among him and his brother and his mother? 
A. — I have no recollection of an3* thing of that kind. 

Q. — Will you state that there was not? A. — I cannot state that 
there was or was not, sir, in relation to a matter that I have no 
recollection of. 

Q. — Didn’t you tell him that his mother should pa3 T twent3 r dollars 
of that, he twent3 7 dollars, and his brother George ten dollars ? 
A. — I have no recollection, sir, of ever sa3*ing an3 r thing of that 
kind to him. 

Q. — Will you state that 3*011 did not ? A. — I sa3 r to 3*ou I 
cannot sa3 7 one way or another about a matter that I have no recol¬ 
lection of. I have no recollection of saying a word of that kind to 
him. 

Q. —Now, if 3*our charge was against him, and against him solel3 T , 
and against nobody else, how happens it that 3*011 cannot remember 
how it was ? Didn’t 3*011 tell him that his mother ought to pay* part 
of it ? A. —Simply because I have no recollection about it. If you 
ask me whether I think I did or not, I can answer 3*011. 

Mr. Thompson. That is what he means to ask you. 

Witness. I think I did not. 

Q. — Will you state positively that 3*011 did not tell him how that 
should be divided? A. — I can 011I3 7 answer 3*011 as I did before. 
I cannot state positive^* about a matter that I do not remember 
about. 

Q. — Then, if 3*ou did tell him that his mother should pa3* a certain 
part, and his brother a certain part, and he a certain part, what did 
you mean by that? A. — I cannot tell 3*011, sir. That is putting a 
case that I know nothing about. 

Q. —If it was so, could you give any explanation of it whatever? 
A .—I don’t know, sir, unless— I don’t know whether I could 
or whether I could not. 

Q. — No possible explanation occurs to 3*011 at present, does it? 
A. — Not in relation to that condition of things, of the existence of 


1882.] 


< 


SENATE —No. 150. 


511 


which I know nothing. Of course, sir, I cannot sa}~ what Mr. Good- 
speed’s idea was in coming to me; whether he had any thing else 
in view excepting his own interests, or not. 

Q. —I am not asking you about what he had in view, but about 
what you had in view. A. — I had nothing in view when he came to 
me, excepting as I told him — 

Q. — When he paid that bill, had }T>u any thing in view except a 
personal payment from him to yourself? A. —No, sir: not that I 
know of. 

Q. —And, still, 3'ou can’t say but that you might have told him how 
much his mother should pa} r , and how much his brother should pay? 
A. — I say I can’t sa} r whether I did or not, in relation to a matter 
of which I have no recollection whatever. 

Q. —Now, to return to the Bradford L. Crocker and the N}~e mat¬ 
ter, who paid you your bill for the suits brought in favor of the Evan¬ 
gelical Society? A. —The Home Missionary Society here in Boston, 
of which Dr. Hooker was secretary, and Mr. Charles Demond at that 
time treasurer. 

Q. — How much was your bill? A. —I can’t tell you, sir. 

Q. — About how much? A. —I have no recollection, sir. 

Q .—Have you any memorandum, or an} T writing, or any book of 
account, or any thing whatever, to show? A. — I have not, sir. It 
never went on to my book of account. 

Q. — Can’t you state approximately ? A. — Not unless I give you 
a bare impression, sir. 

Q .—Well, give that. A. — It may have been somewhere from 
fifty to sevent\'-five dollars. 

Q .—Now I want to ask }’ou in reference to the cash-docket kept 
by Mr. Thacker. Did you hear Mr. Tkacher testify in regard to 
that? A. — I did, sir. 

Q .—Was the statement which he made about it correct? A. — 
What part of his statement? 

Q. — I mean as to the kind of book that was kept, and the kind of 
entries that he made on it, and where he kept it. A —Well, he 
spoke of two books, —one a little memorandum-book which he could 
carry in his pocket, and another one which he had in his desk. I 
know nothing about his pocket-memorandum : I know about the one 
that he kept in his desk. 

Q. _ Are we to understand, judge, that you regard either of those 
books as a cash-docket, within the meaning of the law? A. —I sup¬ 
pose the book which he kept in his desk was, within the meaning of 
the law, a cash-docket. I know of no law that prescribes any par¬ 
ticular form in which that account shall be kept. It speaks of it as 
a docket, that is all; but I know of no law that prescribes the form, 


512 


HEARING —JOSEPH M. DAY. [March, 


and I never heard of any such book as a part of the record-books of 
a probate office. 

Q. —Was that a part of the records of the probate office? A. — 
I suppose it was, sir. If anybody' had asked for it (I never heard of 
anybody’s asking for it), it would have been presented to them at 
once, — that is, I suppose it would. It was in Mr. Tliaclier’s keep¬ 
ing, not mine. 

Q. —Was his desk a private desk? A. —Not that I was aware 
of, sir. 

Q .—Did anyone use it except himself? A. — Nobody but the 
register of probate, as I understood. It was a desk that is provided 
by the county for the register of probate, and he used it. 

Q .—Kept locked, was it? A. —I can’t tell you, sir: I don’t 
know any thing about that. 

Q. —Did you ever look over that book at that time? A. — I did 
not: I never did. 

Q. — Did you ever look it over while he kept it, while he was regis¬ 
ter? A. — I never did, sir. 

Q. — When did you first know of its existence? A. — I first knew 
of its existence when I went down to Mr. Thacher’s house, and 
found it there amongst papers which he had carried away from the 
probate office. I recognized it as made upon one of our bcnch-dock- 
ets, or as one that came from the clerk’s office, — I can’t tell which, 
I don’t remember which now. I found it amongst Mr. Thacher’s 
private papers, and took copies from it, and showed them to Mr. 
Harriman. It was by that that we found out how much Mr. Thacher 
was indebted to the Commonwealth. 

Q. —When and by whom was your attention called first to your 
auditing the register’s quarterly accounts? A. — 1 think, sir, by 
Mr. Hiram P. Harriman. 

Q. — Do you remember the reply which you made to him on that 
occasion? A. — I do not, sir. 

Q. — Did you say, “And the d—d scoundrel might have laid it 
to me if I had audited them? ” A. — No, sir. 

Q. — Nothing of that kind ? A. — No, sir. 

Q. —You said that Mr. Swift paid you about eighteen hundred 
dollars. A. — No, sir, I did not. 

Q. — How much was it? A. — That is about the amount; but I 
didn’t say Mr. Swift paid it to me. 

Q. —You understood that it came from Mr. Swift? A. — I under¬ 
stood that it came from Mr. Knowles. I formed my own opinion 
whether Mr. Swift paid it. I suppose he did without doubt. 

Q. —How happened Mr. Knowles to pay it to you? A. — Because 
when Mr. Swift and I came to an understanding, when I said I 


1882.] 


SENATE —No. 150. 


518 


thought some consideration was due to me, and he agreed to it, and 
we fixed what the consideration was, he requested me himself to go 
to his brother-in-law, Mr. Knowles, and to perfect arrangements with 
him ; and I went to Mr. Knowles. I never had Mr. Swift’s note in 
my life. 

Q. —Did 3*011 have anybody’s note? A. —I did, sir. 

Q. —Whose? A. — Mr. Knowles’s. 

Q. — Any other name on it? A. —No, sir. 

Q. — What Mr. Knowles was it? A. —Mr. James Knowles. 

Q. —A relative of Mr. Swift’s? A. —Yes, sir: he was a con¬ 
nection, — a brother-in-law. 

Q. — Now living? A. — No, sir: he died years ago. 

Q. —How many notes did you take? A. —I cannot tell you, sir : 
I don’t remember. 

Q. —What is 3*our impression about it? A. —Well, sir, if I was 
going to give m3* impression, I should say there were half a dozen 
of them ; and I should say they were for three hundred dollars apiece. 
I can’t sa3* I am right, sir; but I give that as my impression. 

Q. — Were the notes equal in amount? A .—I should think so, 
sir ; but I cannot sa3*. . 

Q. —Wasn’t the amount of those notes two thousand dollars? A. 
— I feel very certain that it was not, sir. 

Q. —Will 3*011 swear positively that it was not? A.— T will not, 
sir ; for I don’t remember. 

Q .—What did 3*011 do with the notes? Did you hold them until 
the3 T were paid ? A. — I presume, sir, — 

Q. — Do 3*011 remember about that ? A. — I presume, — oh ! I held 
them until they were paid, undoubtedly. I never negotiated them, 
if that is what 3*ou mean. 

Q. —How much money did 3*ou receive from the officers who were 
appointed? A. —I cannot tell you, sir. 

Q. —About how much? A. —Well, sir, it dwells in m3 T mind it 
was somewhere in the vicinity of seven hundred dollars. 

Adjourned to Friday, March 24, at 9.30 o’clock. 



514 


HEARING —JOSEPH M. DAY. [March, 


FOURTEENTH HEARING. 

State House, Boston, Room 10, 
Friday, March 24, 1882. 

The meeting was assigned for 9.30 o’clock a.m., and Senator Jen¬ 
nings opened the session at 10 o’clock, and evidence was put in at 
once. 

JUDGE JOSEPH M. DAY (the Respondent). 

Cross-Examination resumed. 

Q. (By Mr. Wadleigh.) —Judge Da}’, were these notes which 
Mr. Knowles gave you for the eighteen hundred dollars, or whatever it 
was, payable on demand or on time? A. — I haven’t the remotest 
recollection, sir. 

Q. — Were they signed, or indorsed, by Mr. Knowles? A. — I 
think, sir, they were signed by Mr. Knowles. Of course, I am giving 
the best of my recollection, that is all; for, as I said yesterday, it is 
laying so far back in the past, and has been so long out of my mind, 
that I cannot be as exact as I could if it happened within five or six 
years. 

Q. —Were the notes paid all at one time, or different times? A. — 
I should say at different times. I should say, sir, that the pa} r ment 
— it would be a matter of probability, however — but at different 
times, I should say. 

Q. — Were the payments made to correspond with the time when 
Mr. Swift received his salary? A. — I cannot tell, sir. 

Q. —How long was it before the last of these Knowles notes were 
paid? A. —I don’t know, sir. I have no recollection whatever. 

Q. — Can you give any statement as to the probable length of 
time it was? A. — I do not think I can, sir, if I understand your 
question, sir. 

Q. —Before the last note was paid, I mean? A. — No, sir: I 
don’t think I could tell you. 

Q .—Upon what basis did you figure up the eighteen hundred or 
two thousand dollars, or whatever the amount was that you were to 
be paid? A. — I cannot remember, sir: I have no recollection of 
the basis upon which the amount was figured that was to be given to 
me as some recognition of my attitude towards the matter; I cannot 
remember how it was made up, sir. I have no recollection whatever, 
not the slightest, 


1882.] 


SENATE —No. 150. 


515 


Q . — What was the salary of the office? A. —Well, sir, some¬ 
where about twenty-five hundred to four thousand dollars: it was a 
fee-office — 

Q. — I know; but what would it amount to? A. — Well, sir, 
somewhere from twenty-five hundred to four thousand dollars. I 
speak of that, sir, from what I have been informed, not from what I 
know. The period I was in the office was a time during which very 
few fees came in there,—during the summer and early fall. Very 
few fees came in in that period of the year, so that I speak from in¬ 
formation from others on that point. 

Q .—Why were the notes given b} T Mr. Knowles? A. — Well, sir, 
Mr. Swift preferred that it should be done in that way ; and I did. 
Mr. Swift first suggested it, and I was very glad to concur in the sug¬ 
gestion. 

Q. —Why did 3’ou prefer it? A. — Well, sir, Mr. Knowles at that 
time was a man of considerable means, and Mr. Swift a man of some 
means, but not considerable ; and, if it is necessary to state my private 
affairs, I will state them, sir, as the particular reason. At that time, 
sir, I was in debt for a house which I had purchased: and it occurred 
to me, sir, that I might have to raise some money ; and I thought, if I 
could give m3’ notes with those of Mr. Knowles as collateral, I could 
more easily do it than in an3 r other way. 

Q. — What were Mr. Swift’s circumstances at that time? A. — 
Well, sir, Mr. Swift at that time was in ordinary circumstances: he 
wasn’t a man of great means ; but, so far as I knew, he was in a pros¬ 
perous condition. 

Q .—What was his estimated worth at that time? A. —I realty 
do not know, sir. If 3 T ou want me to estimate what I should state 
his worth at, I will do so. 

Q. — You can. A. —I should estimate his worth at that time an3 T - 
where from three thousand to five thousand dollars ; and I don’t know 
but it was more, sir. 

Q. — Were the payments, when made b3 r the office-holders, made 
to you ? A. — No, sir : none of them ever paid me a farthing that I 
know of. 

Q. —To whom were the payments made? A. —To Mr. Walter 
Chipman, present deputy-collector of Barnstable, so far as I know 
an3 T thing about it. 

Q .—The3* were made for 3’our benefit? A .—Yes, sir: the 
mone3 T was to repa3 T me for what I had paid out for political expenses. 

Q. —Well, now, was there an understanding between you and Mr. 
Chipman as to how much he ought to take from them? A. — I can 
only say, sir, I presume so ; but I have no recollection now. Not 
that he should, well, — 


516 


HEARING —JOSEPH M. DAY. 


[March, 


Q. —Now, on what basis— A. —The officers were to be left free 
to pa}’, or not to pay, as they pleased. Whatever they chose to pay, 
Mr. Chipinan was to take, as I said before, and hand it to me. He 
was not instructed to demand any thing from a single officer in the 
district; and, as far as I know, he never did. 

Q. — Well, what I want to know is, whether you and Mr. Chip- 
man looked the matter over— A. —That I don’t remember, sir. 

Q. — And came to any conclusion as to what would be about right 
for each of these men to pay you? A. —I don’t think we did, sir. 
I am perfectly free to say I should have indicated to Mr. Chipman 
myself what I thought they ought to pay. 

Q. — What you thought about what? A. — I think I was a better 
judge of it than he was. 

Q. — Did you indicate to Mr. Chipman that you wanted pay? 
A. — I haven’t the slightest doubt I did. 

Q. — You meant to have the payments equal, — that one should 
not pay more than another? A. — No, sir : I don’t know that I did. 

Q. — Well, upon what basis, then, did you estimate what they 
ought to pay? A. —Really, I cannot tell you, sir. It has so passed 
from my mind, I cannot tell you. I have not, sir, — if you will par¬ 
don me, — the slightest recollection of stating to Mr. Chipman about 
what should be asked of each man, or suggested to each man. I 
have no recollection of it; but I haven’t the slightest doubt, sir, but 
that I did. 

Q. — Well, now, didn’t you intend that they should pay equally? 
You did not intend one man should pay more than another? A. — 
I don’t know but I did: I don't know as I did. 

Q. — Can you state that you did? A. — No, sir. 

Q. — How much did Mr. Chipman pay himself? A. — I don’t 
know that he paid any thing. 

Q. — Don’t you know he paid any thing? A. — I do not. I 

didn’t know that one individual paid a farthing except as I learned 

it from the witnesses vou have summoned here. 

%/ 

Q. —Take the case of Dr. Gould. He paid a hundred dollars, 
didn’t he? A. — I don’t know, sir. 

Mr. Thompson. He didn’t say he did. 

The Chairman. He said he thought he did. 

Q. (By Mr. Wadleigh.)— Have you any doubt that Dr. Gould 
paid a hundred dollars? A. — I know nothing about it. 

Q. — Don’t you know who paid, and who didn’t? A. — I do 
not, sir. 

Q. — Did you understand certain payments were made ? A. — I 
certainly did, from the fact that Chipman paid me certain money; 
but I had no recollection of who it came from. 


1882.] 


SENATE —No. 150. 


517 


Q*—As to Dr. George W. Doane? A .— I know nothing about 
it, sir. 'It is the same in relation to all of them. 

Q> —Now, about Gilbert Crocker: have 30U any doubt that he 
paid the fifty dollars? A. — I didn’t know any thing about it: he 
never paid it to me, I am very certain. 

Q■ —Do you know anj T thing about how these amounts were paid? 
A. — I do not, sir. 

Q !•—Did 3’ou pay Mr. Steele any money? A. —Never, that I 
know of: I don’t remember. I am very clear Mr. Steele is mistaken 
about one thing; and that is, in supposing that the salaries of the 
custom-house officers were paid at the court-house. 

Q. — Can you say 3’ou didn’t pa} r the money to Mr. Steele, what 
was paid to him from Mr. Rodman? A. —Well, as far as I can 
make out of any thing laying so far back as that in the past, and 
also from Mr. Steele’s statement as to where it was paid, I should 
certainty say he was mistaken. 

Q .—Is that because you take it for granted that you never paid 
any of those bills at the court-house? A. —No, sir: because, in 
the first place, I know that no salaries of custom-house officers were 
paid at the court-house, or could be ; and I have no recollection 
whatever of the transaction. 

Q. —Will } t ou swear that you didn’t pa3 T him mone3 T on account 
of the bill which he presented you from Mr. Rodman? A. — In no 
other form than I have already. 

A' 

Q. — Do 3 r ou remember taking a note of Mr. Crocker? A. —I do 
not, sir; and I am positive I didn’t take a note from Mr. Crocker or 
any other man. 

Q. — Do you swear positively that you didn’t take his note from 
any other man? A .—I swear as positivety as I can to a negative 
laying back at that distance. 

Q. — Do you remember whether you had any talk with Mr. Crocker 
about the matter? A. — I do not. 

Q .—Do you know when he paid, at the end of the first quarter, 
or what time he paid? A. — I do not, sir. 

Q. — From whom did you receive this money that was paid b3^ 
these officers? A. —By Mr. Chipman, unquestionably. 

Q. —When was it paid to you? A. —I don’t know, sir: I can¬ 
not tell 3*ou. 

Q. — When was it with reference to the expiration of the first 
quarter? A. — I cannot tell 3’ou. 

Q. — Did you ever give him any receipt for it? A. —No, sir. 

Q. — Did you ever make any record of it in any way on account 
or memorandum book, or an3’ thing of the kind? A. — No, sir, 
never, sir. 


518 HEARING —JOSEPH M. DAY. [March, 

Q. — What was the exact amount paid you ? A. — I cannot tell 
you, sir : I don’t know. 

Q. — Can 3*ou tell whether it was all paid at one time or different 
times? A .— I cannot, sir. 

Q. — You left this whole matter with Chipman, did } 7 ou? A .— 
Yes, sir. 

Q. — And 3*011 informed him how much he should take? A. — I 
say I have no doubt I did: I don’t remember any thing about it. 
I have no doubt I did. 

Q. — Now t , what did you look upon these payments as being? A. 
— Exactly what the} 7 w r ere : the contributions of other officials — cus¬ 
tom-house and United States officials there in the county — to help to 
pay the expenses of the Republican party in years gone by. That is 
precisely what they were, sir. 

Q .—What did you do with this money? A. — Put it in my 
pocket, sir. 

Q. — Did you pay it out to anybody? A .—Yes, sir: I paid it 
out before I received it, too. 

Q. — I mean, after 3*011 received it, did 3*011 pa3 T it out to an3’bod3 r ? 
A. —I cannot tell you w r itli reference to the time when I received 
money. I cannot tell when I made pa3'ments in various parts of the 
county*. There were quite a number of them made. When I made 
them, I cannot tell. 

Q. (By the Chairman.) —I understood you to sa3 T , Judge Da3*, 
that this mone3 T was to reimburse 3 7 ou for mone3 T that 3’ou had paid 
out in previous campaigns? A. — Yes, sir : I suppose the thing will 
come out before long from some of these questions. If not, I will 
enlighten the Committee about that. Yes, sir: it took in the cam¬ 
paign in which Mr. Lincoln w T as elected, and the preceding campaigns 
also. 

Q. (By Mr. Wadleigh.)— Then, it wasn’t for future expenses, 
but past expenses? A. — Past expenses, sir: they were all I had 
in view then, as I now remember. 

Q. —Past expenses incurred by whom? A. — Incurred, sir, by 
men who were active in creating and consolidating the Republican 
party 7 in the county* of Barnstable, in the various towns. 

Q. — Did 3*ou pay out this money to an3* of those men? A .—I 
did, sir. 

Q. —After you resigned? A. — I presume so, after and before, 
too. 

Q. —To whom in the county of Barnstable did you pay any of this 
money afterwards? A. —I cannot tell, sir, to whom I paid it after¬ 
wards. 

Q. —Now, didn’t you just state, judge, that you received that on 


1882.] 


SENATE —No. 150. 


519 


account of expenses which you had incurred in previous campaigns? 
A. — No, sir : if I so stated, I didn’t intend to. 

Q. — What was it you said yesterday about three hundred dollars ? 
A. — I mean to say, that, beyond all the money received from the 
contributions of the men, my impression is, I was behind three hun¬ 
dred dollars, after paying the kind of expenses I told you about. 

Q. — What do you mean by three hundred dollars behindhand? 
A. — Because I paid out the money. 

Q. —Did you receive it? A. — At what times I cannot say. I 
presume I paid out both before and after, but I cannot tell you about 
that. * 

Q. — To whom did you pay it? A. —Well, sir, to quite a num¬ 
ber of people in the county of Barnstable, taking them altogether. 
Their names I cannot recollect now. They were men engaged in local 
politics in the towns, and men that were very anxious for office ; 
and there were a good man } 7 more that wanted office than there were 
offices. A man who could not have an office wanted his expenses 
paid, telling of the work that he had been to for the Republican 
party. 

Q. — In your statement that you were three hundred dollars behind, 
did you include the eighteen hundred, or about two thousand, dollars 
that Mr. Swift paid you? A. — No, sir. 

Q. — Did you only include the amount you received from your 
office-holders? A. — That is all, sir: the general contribution to 
party expenses. 

Q. — To whom did you make payment of this money, Judge Day? 
A. — Well, sir, I cannot say the parties to whom I made payments. 
They were a class of men that at that time were active in politics. 

The Chairman. I think he has answered that. He stated it very 
fully in an answer previous to this. 

Witness. I can tell you, sir, if I must. I do not care to. 

The Chairman. It is the opinion of the Committee that the ques¬ 
tion asked shall be answered. 

Witness. The only parties to whom I now recollect of paying 
money was Mr. Nathan Crocker of Barnstable, for one; Mr. Louis 
L. Sellew of Provincetown, for another; a gentleman by the name 
of Keith, in Sandwich ; and somebody by the name of Nickerson, I 
think, somewhere down the Cape ; and I can’t tell what town he came 
from. And they are the only four names I can recall. 

Q. — Is Mr. Nathan Crocker dead? A. —Yes, sir. 

Q. — Is Mr. Sellew dead ? A. — Not that I know of. 

Q. — Where does he live? A. — I don’t know, sir. 

Q . — Don’t you know where he lives ? A. — I do not, sir. 

Q. — Where did he live at that time? A. — He lived in Prov¬ 
incetown. 


520 


HEARING —JOSEPH M. DAY. [March, 


Q. —Where was Mr. Keith? A .— He was of Sandwich. 

Q. — Where is he now ? A. — As far as I know, he is in Sand¬ 
wich. No — I don’t know. 

Q. — What was his given name? A. — I can’t tell you, sir. 

Q. — And the other gentleman’s? A. —The other gentleman I 
could not tell 3*011, except — that it dwells in my mind, and I have no 
doubt it was Nickerson ; but the Nickersons are so thick down there, 
that what town he came from, or what his first name was, I cannot 
tell. Well, sir, I can’t remember the name: I remember the inci¬ 
dent, and certain matters in the town of Chatham before and beyond 
that. But those things have gone from me : I cannot recall them. 

Q. —As to the four men, — how much did you pa} r Mr. Crocker? 
A. — Crocker received a hundred or a hundred and fifty dollars, 

— a hundred and fifty dollars. 

Q. — When was that paid him? A. — I cannot tell 3*ou, sir. 

The Chairman. With reference to the campaign of 1860 ? 

Witness. It was paid after I was appointed collector. All of this 
was done after I was appointed collector, and was getting the party- 
strings in order. 

Q. — Well, do you remember what was paid to Mr. Nathan 
Crocker? A. —Yes, sir: a hundred ora hundred and fifty dollars, 
I cannot tell 3*011 which. 

Q. —What for? A. — His expenses, sir. 

Q. —In what matter? A. — Working for the Republican part3*. 

Q. — When? A. — Well, sir, for aught I know, from the time he 
went into it down to the time I was appointed collector. 

Q. —That is, he didn’t give you an3^ idea of what the services 
were? A. —He didn’t give me a bill of items, sir. 

Q. — Were these services performed before 3 T ou were appointed col¬ 
lector? A. — Yes, sir. 

Q. — He made this demand on 3*ou? A. — No, sir: that wasn’t 
the demand he made. 

Q. — What was the demand he made? A. —He thought he ought 
to have two hundred dollars. 

Q. — How many interviews did you have with him? A. —I think 
only one, sir : I don’t remember. I cannot tell you how many inter¬ 
views. 

Q. — When was that interview? A. — I cannot tell you. 

Q. — Don’t you remember when you met him? A. — No, sir. 

Q .— Do you remember where you were when 3*ou paid him? A. 

— No, sir. 

Q. — Was anybody present? A. — I don’t know, sir. I presume 
there was : I don’t know. 

Q. — And he didn’t give you any receipt? A. — No, sir. 


1882.] 


SENATE — No. 150. 


521 


Q • —And you didn’t make an } 7 minute of it? A. —Not a minute. 

Q. —What did lie say to you at the time he called for this money? 
A. —I don’t remember. 

Q • — What ? A. — I don’t remember. 

Q • —Do you remember any account he gave of his claim? A. — 
No, sir. I remember something I said to him. 

Q • —I don’t want that, but what he said to you. A. — I will tell 
you one thing he said. He says, “ I rather think, Mr. Day, I should 
prefer it in money.” 

Q • — Was that in answer to something you had said to him ? A. 

— No, sir: that was in answer — 

Q .—What was the suggestion you made to him? A. — I sug¬ 
gested, if he wanted any thing, I should prefer to make his wife or 
himself a handsome present in some way,—some article that he 
might choose ; but he “ preferred it in money.” 

Q. — lie made this demand on you in what capacity? I mean, in 
what capacity did you stand which induced him to make a demand on 
you for two hundred dollars? A. —Oh! none other, sir, except as 

— I suppose I was the recognized head of the party down there, 
holding the collectorship, and being in an office where money might 
be obtained for paying political expenses. 

Q. — Well, he had been one of your personal friends, I suppose? 
A. —Oh, yes, sir ! 

Q. —And claimed that he had been working for you? A. — No, 
sir, I don’t think he did ; for I don’t believe he did. 

Q. (By the Chairman.) —Judge Day, do I understand that this 
money was paid to reimburse him for his expenses for the Republican 
party? A. — Yes, sir. 

Q. — Why did you suggest your making him a present for what he 
did for the Republican party? A .—Because I understood pretty 
well what all this thing meant, sir. 

Q. (By Mr. Wadleigh.) —What did it mean? A. — It meant 
that m^ny of the men I was a good deal disappointed in came and 
asked for money, — men that I never supposed would ask for it. If 
they could not get an office, if they could get a hundred or a hundred 
and fifty dollars, why, it was all right; and, when Mr. Crocker came 
to me, I confess it didn’t strike me quite as pleasantly as it might. 
I thought he, at any rate, should have had little more consideration. 
But the point was, to keep everybody satisfied, to keep everybody in 
the party in good humor; because — as I was about to say a little 
while ago — the party was in a condition then in which, at that time, 
it was not thoroughly welded together. The “American” (party) 
element was making more or less trouble with us all the time. 

Q. (By the Chairman.) —Why should you make him a present? 


522 


HEARING —JOSEPH M. DAY. [March, 


A. — Simply because Mr. Nathan Crocker I regarded as somewhat 
different from them, and I thought it would leave a little better im¬ 
pression in my mind to do that. 

Q. (By Mr. Crowley.)— You were one of the “bosses” of the 
Republican party at that time down on the Cape? A. — Well, sir, I 
think very likely. 

Q. (By Mr. Wadleigh.) —Now, about Sellew. How much did 
you pa}' him? A. — Mr. Sellew I paid a hundred and forty dollars. 

Q. — And when did you pay that? A. —I cannot tell you, sir. 

Q. — Who was he? A. — Mr. Sellew, sir, was the head of the 
“ American” element there. He was the “ Know-Nothing” senator, 
as they called him in those days, — the Know-Nothing senator from 
that end of the Cape; and — my impression is, Mr. Sellew wanted 
two hundred dollars. 

Q. — He was one of your personal friends? A. — No, sir. 

Q. —Wasn’t he? A. — No, sir. 

Q. — What kind of a demand did he make on you ? A. — He 
wanted two hundred dollars also. 

Q. —I know ; but on what did he base his claim? A. — On the 
same ground, —of expenses incurred for the Republican part}'. 

Q. — At what time ? A . — Previously to my appointment as col¬ 
lector. 

Q. —I mean, what time did he claim these services were performed? 
A. — He never gave me a bill of items either. He never gave me 
any dates or time. 

Q. — Didn’t you have some curiosity to know when he earned this 
money? A. — No curiosity, except that it was entirely satisfactory 
by what I personally knew of Mr. Sellew. I knew that gentleman by 
his position in politics, because I was quite well posted in those days 
in relation to the politics of Barnstable County. 

Q. —Well, you paid him a hundred and forty dollars? Now, how 
much did you pay Keith? A. —I cannot tell, sir. 

Q. —Well, how much do you think, judge? A. — I haven’t any 
recollection of the amount: I cannot tell you, sir. 

Q. —Well, have you no recollection whatever? A. — I don’t 
think I have, sir, any recollection whatever. 

Q. — Was the amount so small that you do not recollect? A. — 

I don’t know whv I don’t recollect it. 

«/ 

Q. — Have you any impression of the matter? A. — I haven’t 
any impression of the amount. 

Q. — How long is it since you saw Mr. Sellew or Mr. Keith ? A. 
— I don’t know as I have seen Keith for two or three years. 

Q. —This Mr. Nickerson, how much did you pay him ? A. —Well, 
sir, I could only give you an impression. I cannot give you any 


1882.] 


SENATE —No. 150.' 


523 


thing definite. I should think somewhere from fifty to a hundred 
dollars. I cannot say now. 

Q. —For the same thing? A. —For the same thing. 

Q . —That is, services which in previous years they performed for 
the Republican party? A .—-For the expenses they thought they 
were entitled to for services to the Republican party. 

Q. — Did you consult with any one before paying them ? A. —No, 
sir. 

Q. — Did you ever render an account to an}' political organization 
for those payments? A. —No, sir. 

Q. — When were these payments made with reference to your ap¬ 
pointment as collector? A. — After I was appointed. 

Q. — How long after? A. — Oh ! I cannot tell you, sir. I would 
say the}' were general, — quite often, I think. I remember as people 
came piling in on to me for office, and it was utterly impossible to 
give it to them, it was paid so they should go away happy. I suppose 
it was done when I refused to give them office. I cannot tell just 
when. 

Q. —Before you resigned it, or after? A. —Before, sir. 

Q. — Before you resigned ? A. — Yes, sir. 

Q. — Some time between July and October? A. — No, sir: I 
should say it was between May and October. 

Q .—You were appointed, then, in May? A. — Yes, sir. 

Q. —And they began to apply to you for office? A. — They did, 
indeed, sir. 

Q. —Did you make any changes before the first of July? A. — I 
should think not: I don’t know. 

Q. — You had the right to? A. — I suppose so: I don’t know, 
either, about that. 

Q. —Y r ou were acting as collector? A. — Yes, sir, I was. 

Q. — What was it that led these gentlemen to all pour in on you in 
this insatiable thirst for money? A. — Well, sir, patriotism, I have 
no doubt. 

Q. — You say that it was no secret, this payment of money to you 
by Dr. Gould and others? There has been no secrecy about that? 

A. _I never made any, sir. I never made any concealment or secret 

about it. 

Q. (By the Chairman.) — Did you ever tell anybody that Mr. 
Swift had paid you eighteen hundred or two thousand dollars? A. 
— Yes, sir. 

Q . (By Mr. Wadleigh.) — Whom did you tell of it? A.—Mr. 

Thomas D. Elliott of New Bedford. 

q, He is living? A. —No, sir: he was member of Congress 

there ; and I should say it was then well understood, for it was re¬ 
ferred to in the Democratic newspapers of that date. 


524 


HEARING —JOSEPH M. DAY. [March, 


Q. — Did you admit it always when they charged it on you ? A. 
— I never denied or sought to conceal it in any way in the world, for 
there was no reason to conceal. 

Q. — So it got noised around that you were getting money out of 
the office-holders, and they came to you for money? A. — I don’t 
know of that, sir: I never heard an } 7 thing of it. 

Q. — How did they know you had money with which to meet those 
claims? A. — I don’t know, sir; and I don’t know that they did 
get it. They made the claims ; and I had the money, and paid them. 

Q. — Is Mr. Keith still living? A. —I don’t know, sir: I have 
seen Mr. Keith within two years, and I should say within a year and 
a half I have seen him. 

Q. — What was his given name? A. — I don’t know, sir. 

Q. — Don’t you know Mr. Sellew’s given name? 'A. —Yes, I 
know his name. It is Louis L. Sellew. 

Q. — It was Nickerson whose given name you didn’t remember? 
A. —I don’t remember his name : no, sir. 

Q .—His first name? A. —I don’t remember Mr. Keith’s first 
name. 

Q. —You don’t remember any other individual to whom you paid 
any money, whom you can name? A. — I don’t recall their names. 
I passed out of politics myself when I went into the service. These 
men have passed out; and their names have gone from my mind for 
years and years, and I have no mode of recalling their names. I kept 
no accounts in this matter. I was, perhaps, a little young in politics 
in those days ; but I supposed that these were matters not usually 
entered upon ledgers. 

Q. — How old were you ? A. — I was at that time thirty or thirty- 
five, somewhere along there: but I never had any thing to do in 
politics till I went to the county of Barnstable in 1851 ; and in 1861 , 
and ever afterwards, I worked very actively. 

Q. — Do you know Mr. Isaac Keith ? A. — Yes, sir. 

Q. — Was it his father to whom you referred? A. — No, sir. 

Q. —What was his business? A. — I don’t know, sir. 

Q. — Can you give us any information which will enable us to find 
him if he is living? A. — I can’t give you his name. 

Q. — Can you give us any thing that will enable us to identify him 
if he is living? A. — Why, yes, sir : I will give you information so 
that you can send for him if you want him. He is a imyi without 
any arms, sir. 

Q. — Hiram Keith, is it? A. — I don’t know, sir. 

Q. — Can you give us any information to identify Mr. Nickerson 
so that we can find him? A. — Why, no, sir: 1 should as soon 
think of trying to identify John Smith. 




1882.] 


SENATE — No. 150. 


525 


Q • — Now, when was it you first mentioned to Mr. Swift that he 
ought to pay 3*011 something for that office? A. — When I went to 
see him, soon after my interview with Gov. Andrew. 

Q • —And in what wa3* did 3*011 broach the matter to him? A. — I 
can’t remember, sir, excepting that the substance of what I said was, 

I had this conversation with Gov. Andrew, and I had agreed with 
him to resign the collectorship at the end*of the quarter. That was 
substantial^ it. I cannot tell you the termsdn which I spoke. 

Q. — What was the consideration on which he paid you this mone3 T ? 
A. — As I understood it, and he has understood it, I think, none 
whatever, excepting friendliness of feeling. I was going to step 
out from an office in which there was a handsome salary, and he 
was going to step into it; and, of course, leaving that office in that 
way, left me without that kind of recognition that men engaged in 
politics, and who ask for offices, desire. I suggested the thing to 
him, and he concurred at once. There was no question of bargain, 
or an3 r thing of the kind: I asked it and he granted it, simply as a 
friend^ act of consideration. 

Q. — Well, now, judge, do you intend that this Committee shall 
understand that a man who was not worth more than three thou¬ 
sand to five thousand dollars in the world was ready out of mere 
friendship to make 3*011 a present of two thousand dollars or there¬ 
about? A. — I menu to state the transaction as it was, and it must 
strike the minds of the Committee as it will. 

Q. — Wasn’t there any sort of consideration for that except his 
friendship for you? A .—Nothing in the world, sir, excepting the 
political brotherhood and friendship that existed between us. I have 
no doubt that Mr. Swift was very glad to see me get some advan¬ 
tage from politics, as I was very glad to see him appointed. There 
was nothing else, sir, that was the foundation of his assent to m3* 
proposition. 

Q. — He opposed 3*our being appointed, didn’t he? A .—Of 
course he did ; for he was an applicant himself—in that way, and in 
no other, I think. 

Q. (By the Chairman.) —Did you inform Mr. Elliott of this talk 
you had with Swift, soon after that? A. — Yes, sir: Mr. Swift and 
I went to New Bedford, and saw Mr. Elliott. 

Q. — And 3*ou told him everything that had been done? A .— 
Yes, sir; and he expressed his hearty concurrence in the whole thing. 
He understood it thorough^*. 

Q. (By Mr. Wadleigh.) —Now, at the time 3*011 proposed to Mr. 
Swift to pay you this sum, this two thousand dollars, did you give 
him to understand, that, if he would, you would endeavor to get him 
appointed in your place? A. — I don’t think so : there was no occa¬ 
sion for it whatever. 


526 


HEARING —JOSEPH M. DAY. [March, 


Q. —Still, 3*ou said, just a little while ago, that the consideration 
was, that you were to step out and he was to step in? 

Mr. Burdett. Well, now, he has not said an} T thing of the sort. 

Q. (By Mr. Wadleigh.) —What was it you said about your 
stepping out of an office and his stepping in? A. —Well, sir, I 
don’t know as I can recall my exact words now. As I understood 
your question, it was how he came to assent to nry suggestion ; and I 
told you I was going to step out of an office, — I don’t know whether I 
stated the amount of salary, or not, or any thing about the salary, — 
and he was going to step into it— not that the consideration was my 
stepping out, at all. 

Q .—AYhat? A. —Not that the consideration he was going to 
give me was for my stepping out. 

Q. — What was the consideration ? A. — Of what? 

Q. —The consideration of his paying. Now’, 3’ou say, Judge Day, 
that the consideration was not your stepping out. You want to ex¬ 
clude that now. A ..— Sir? 

Q. — You sa} T that the consideration of his paying you two thou¬ 
sand dollars was not your stepping out of office ; what was it? 

Mr. Burdett. He answered that. 

A. — It was my suggestion to him that I was entitled to some¬ 
thing, to some recognition for my services to the party, and, as I 
understood it, and Mr. Swift understood it at the time, because he 
was willing to see me have some advantage from my connection with 
the party, as I was him, and that it was a personal matter, purely 
personal, and in no way connected with m3’ attitude towards the 
office, or his attitude towards the office. 

Q. — He circulated petitions for 3’ou for this office of collector? 
A. — I don’t know, sir. 

Q. — Did Mr. David Bursley? A. — I don’t know, sir. I don’t 
think he ever circulated any petitions : he went down the Cape. He 
went down the Cape, as he says, Mondaj’ morning, and came back 
Tuesday, and left the petitions. Who circulated them, I don’t 
know. 

Q. — He procured them to be circulated? A. — Oh, yes, sir! 
There is no doubt about that. 

Q —Can you tell how much money you paid out, Judge Day? A. 

— No, sir. 

Q. — And }’Ou cannot tell liow^ much you received ? A. —No, sir. 

Q. —After the petitions w^ere in, prior to your appointment, did 
you go to New Bedford, and see Mr. Elliott with Mr. Bursley? A. 

— I don’t remember— Did I w r hat, sir? 

Q. — Did you go to New Bedford to see Mr. Elliott? A. — I don’t 
know, sir. 


I 




1882.] 


SENATE — No. 150. 


52T 


Q. — Did Mr. Bursley go to see Mr. Elliott? A. —I don’t know : 
lie said lie did. 

Q. — Now, did Mr. Bursley pay you an}^ money? A. —No, sir. 

Q • —And he didn’t pay any thing in connection with receiving an 
appointment? A. —Not that I know : I never heard that he did. 

Q. — Did 3’ou appoint him to an office? A. —I did, sir. 

Q. (By the Chairman.) —Who had general charge of the matter 
of your getting that appointment of collector? A. —Why, I did 
1113-self. 

Q. — You personally supervised it? A. —Yes, sir : I think I did. 

Q. (By Mr. Wadleigh.)—D id you rely on Mr. Bursle\As aid? 
A. —Never a particle, sir. excepting to attend to those petitions — 
nothing further. 

Q. — Now, haven’t you stated that this money was taken by you- 
from your office-holders to cover your expenses in getting the office ? 
A. —No, sir : not to my recollection. I never made any such state¬ 
ment. 

Q. — Will you deny that you did? A .—I will deny that I have 
an} r knowledge or recollection of making any such statement. 

Q. —Have you such a recollection that }’ou can sa} T you never did 
make that statement? A .—I will say I have no idea or belief 
whatever that I ever made any such statement. I don’t know that 
I can put it any stronger than that. 

Q .—Now, did you recommend Mr. Ebenezer Bacon as your suc¬ 
cessor as judge of probate? A. — No, sir : not that I know of. 

Q. — What? A. —No, sir : not that I am aware of. 

Q. — Did you oppose his confirmation? A. — Probably not, sir. 

I don’t think I should put my hand into a matter of that kind at such 
a time. 

Q. — I ask 3'ou whether you did or not? A. —I have no recollec¬ 
tion of an3 r thing of the kind, sir. 

Q. —Now, there was a good deal of trouble made, I understood 
you to say, in regard to this appointment? A. — Mr. Bacon’s? 

Q. —Yes. A. — Yes, sir: the present attorney-general of the 
Commonwealth, and many others in the county — Mr. Nathan Crocker 
was among others who were active in politics there. They came up 
here to Boston, and had, I should think, several hearings before the 
council. 

Q. — And made a good deal of feeling? A. — I judge so, sir. 

Q. — There was strong objection ? A. — I was not present. 

Q. — You so said. A. — I so understood. 

Q. _A great deal of prejudice? A. —I know there v r as an oppo¬ 

sition, and the council rejected the nomination. 

Q. — Was that the same Bacon that you say you appointed on your 


528 HEARING —JOSEPH M. DAY. [March, 

% 

own motion in the Noble P. Swift case? A. —Yes, sir: the very 
same man. 

Q. —And in the case of Varanus B. Nickerson? A .—I don’t 
know about that, sir. 

Q .—You don’t remember that you appointed him one of the as¬ 
signees in the Varanus B. Nickerson case? A. — No, sir. 

Q. —Was there more than one Ebenezer Bacon down there? A. 

— Not that I know. I don’t know whether they were appointed or 
elected : I can’t remember a matter of that kind. 

Q. — Do you remember Capt. Gilbert Crocker’s telling you that he 
was a poor man ; that he had a family, and that he didn’t want to 
pay that amount, or any thing of that kind? A. — No, sir : he never 
told me any thing of the kind ; and, if the man had made a particle 
of objection, he never would have had a cent to pa}’. 

Q. — When did you go to Falmouth with the county commissioners, 
as vou stated? A. — I should think it was last vear ; some time in 
1881. 

Q. — Are you positive it was 1881 ? A. — I think so, sir. 

Q. —Wasn’t it 1880? A. —I think not. 

Q. — Can you tell? A.—I positively answer, yes, sir. I say 
positively that it was in 1881 ; that is, if I am not mistaken as to the 
death of Mr. Eben Wright. I can only fix it with reference to that 
matter. It was after the death of Eben Wright, Mr. Eben Wright 
of Sandwich. 

Q. — I am informed. Judge Day, that you gave as a reason for 
your not knowing about the law requiring you to audit the register’s 
accounts, that you were in the army? A. —No, sir, I did not. 

Q. — Well, what did you say about it? A. — I said this : that that 
law was passed, I think, in April; or went into effect — yes, I think 
it was passed in April, 1802 ; and of course — I don’t know whether 
it is necessary to say to you, but it will be to these other gentlemen, 
that — the laws did not come out as earl}’ as that, and that the law 
would not go into effect until thirty days from that time. I was 
making speeches in the county of Barnstable, and raising men for the 
army at that time ; and then the impression came upon me that it was 
my duty to go where I was asking others to go; and in August of the 
same year, I think, I went into camp at Boxford ; and Sept. 8 my 
regiment left the Commonwealth, and I was not back till September, 
1863 ; so that the law didn’t come to my attention at all. 

Q. — During that time you held the office of judge of probate? A. 

— I did, sir. 

Q. — Who did the duties? A. —Edwin M. Gardner. 

Q. — You drew the salary? A. — Yes, sir. 

Q. — And you paid him? A. —No, sir. 


1882.] 


SENATE —No. 150. 


529 


Q •—He paid the Commonwealth? A. — No, sir: he didn’t 
charge any thing for his work. This was an arrangement between 
Mr. Gardner and me. I turned m 3 ' business over to him; and he 
left Nantucket practically, and settled in the town of Barnstable, to 
do business ; and he performed my duties there as judge of probate. 
If he hadn’t done it, my brethren would have performed it very will- 
ingl}’ under the circumstances. 

Q • —Then you resigned the army office, and went back to the office 
of judge of probate? A. —Yes, sir, as soon as I was able. 

Q • — But you were not aware of the existence of this law ? A. — 
I was not, sir. Yet the bankrupt law was not passed till 1867. 

Q. —Yes, sir, that is true. 

Witness. There are a great many things in a probate office that 
run according to a s\'stem ; and get things once into a S} T stem there, 
and it is easy to run them in these ruts. And, when I came back, it 
ran as it had gone before the passage of that law ; and, having no 
notice of it, why, I just accepted the condition of things as correct 
then as it was before I went. 

Q. —And you didn’t make examination of the statutes to see if 
there were an}' duties imposed on } t ou, or not? A. —I said I didn’t 
know of the law, whether there was an examination made or not. 

Q .—‘Now, last year, judge, before Mr. Messer went on the stand 
and testified, did 3 'ou ask him what he was going to testify to, or any 
thing like that? A. —Not as I remember, sir. 

Q. —Didn’t 3 'ou have a talk with him before he went on the stand? 
A. — Not that I recollect, sir. 

Q .—Well, now, sir, didn’t }'ou have a talk with him? Didn’t he 
state to }'ou what he afterwards stated, all the circumstances, in sub¬ 
stance? A. — No, sir. 

Q. —And didn’t you tell him you didn’t remember any thing about 
it whatever? A. — No, sir: no such conversation ever took place 
between me and Mr. Messer. 

Q. — Now, in regard to this Doane case, did }'ou keep any books 
in which any of the matters that 3 'ou alluded to there are entered? 
A. — Yes, sir: there are matters upon m} r books, not in relation to 
Ambrose Doane, but in relation to Joseph C. Lawrence. 

Q. — What entries are there? A. — I cannot tell you, sir, I am 
sure, what charges. 

Q. —Did you have a settlement with Mr. Lawrence before his death ? 

A. _No, sir. He paid me money before his death; but I had no 

settlement with him. 

Q. — Did you give him a receipt? A. — I don’t know as I did. 

Q. — Didn’t 3 'ou give him a receipt in full long before his death? 
A. —Not that I am aware of. 


530 HEARING —JOSEPH M. DAY. [March, 

Q .—Will 3’ou say you didn’t? A. —No, sir, not a receipt in 
full. 

Q. —Yes, sir, a receipt in full for all demands? A. — Not that I 
know of. 

Q. —Will you say you didn’t? A. —If I did, it was by mistake. 
I did not intend to. If there is a receipt in existence to exhibit to 
me, I will identity it at once. 

Q .—Were not your charges in relation to the difficulty between 
him and his wife all adjusted before he died? A. — They were not: 
no, sir. 

Q. (By the Chairman.) —How can you tell now that it was by 
mistake, if you did give such a receipt? A. —Because I know, sir, 
there is a balance still due. 

Q. — What do }T>u say? A. — There is a balance due. 

Q. —Would you not have known it much better at that time than 
you do now? A. — Well, no: I don’t think I should. It would de¬ 
pend on circumstances, where he paid me, etc. The reason I am 
certain now is, because I have examined my books, and find the bal¬ 
ance there. 

Q. — Do you enter every thing on the books that is paid 3*011 ? 
A. — If a man paid me cash, I entered it. I do not mean that 
any cash shall be paid me where they won’t get credit for it. • 

Q. (By Mr. Wadleigh.) —Then, whenever any money was paid 
over to you, you put it on the book? A. —Yes, sir. 

Q. — Have you got the Goodspeed payment on? A. —No, sir: 
there was no charge. 

- Q. — Then, there is nothing on } T our books to show any thing about 
that? A. — No, sir : as there is nothing on my books to show about 
a good deal of my business, I think I made a mistake in my testi¬ 
mony 3’esterday. I think I stated as to who paid me for the writs 
of entry. I stated the Home Missionaiw Society. I think I should 
correct it b3 T sa3 T ing it was lry Mr. C. Demond, who was then holding 
the office of treasurer of the Home Missionary Societ3 T . Whether he 
held any other position, I don’t know. It didn’t come from Dr. 
Hooker: it came from Mr. Demond. 

Q . (B3' Mr. Bruce.) — Now, as I view it, 3 T ou want to be under¬ 
stood that none of the mone3 T received by you from men appointed b3 r 
3'ou to office was on account of an3 T expense you had been to person¬ 
al^ to secure your own appointment as collector? A .—That is 
what I desire to be understood : that it was entirety on account of 
alleged expenses in the county of Barnstable amongst the politicians 
there. 

Q. (B3’Mr. Hill.)—I ncluding 3*0ur own expenses? A. —No, 
sir: not including 1113’ own. I was never paid my expenses in the 
count3’ of Barnstable. 


1882.] 


SENATE — No. 150. 


531 


Q. (By Mr. Bruce.) —Now, another question. Had you become 
under an}' personal obligation in any way, to any of these men, to pay 

an}' sums of money before you were appointed collector? A .— No, 
sir. 

Q. — Had not ? A. — No, sir. 

Q* You did not know any thing of these bills which they say they 
had contracted on account of politics generally at this time ? A. — 
No, sir. 

Q' —And they were men who came in to you, and told you that 
some time previously, on account of some campaign down there, they 
had expended money on account of the Republican party? A. — I 
cannot say it was put in that form, of course. I was given to under¬ 
stand they were so much out of pocket for the Republican party ex¬ 
penses, and they felt they ought to be remunerated. 

Q • —The state of politics was such in the county, that you wanted 
to keep harmony in the county? A. —Precisely, sir. 

Q • — Was there any great danger of the party losing hold on 
Barnstable County? A. — I don’t know: I didn’t mean that it 
should lose its strong grip. 

Q. —Wasn’t politics that time all one way practically? A .— 
No, sir: of course succeeding events welded the party there, and 
everywhere else ; but of those events I was not as well acquainted 
then as I was subsequently. The whole course of the Rebellion was 
such as to bring men from all parties, if there had been no other 
cause in the world, — just the desire to preserve the government: a 
desire to bring them into a party, the great forces of which had made 
it homogeneous. 

Q .—In 1861 wasn’t the Republican vote three to one there? A. 
— No, sir: I won’t say that. I think that the Republican vote was 
made up, not only of Republicans and old Whigs, but was also made 
up of members of the Know-Nothing party; and that was a pretty 
strong organization on Cape Cod. It swept it, I think. I know, 
under my administration of the affairs of the Republican party, it 
wms the first county in the Commonwealth of Massachusetts to over¬ 
throw Know-Nothingism. It was the first county carried for the 
Republican party, clean, in the Commonwealth of Massachusetts. 

Q. (By Mr. Hill.) —I understood you to say, yesterday, you had 
been at an expense of three hundred dollars — I mean three hundred 
dollars behind — in reference to your obligations to gentlemen not in 
search of those offices. Was that so? A. —No, sir: I mean to 
sav, after I received contributions from the various officers, — all that 
they chose to pay voluntarily, — I was then some three hundred dol¬ 
lars out on expenses, and I had to pay all these people. That is 
what I claim. 


532 


HEARING —JOSEPH M. DAY. [March, 


Q. (By Mr. Bruce.) — You say none of these payments were made 
to you. I want to know whether you suggested to an}’ one that the 
payments ought to be made by the various men appointed by you? 
A. —Whether I suggested? 

Q .—Yes, sir: somebody suggested to those men that the money 
ought to be paid. Did you suggest it? A. —No, sir: not that I 
am aware of. You must allow me to suppose — I suppose Mr. Wal¬ 
ter Chipman did every thing of that kind. I spoke to him, and he to 
them. 

Q. — You spoke to him? A. — Undoubtedly, sir. 

Q .—That these assessments should be made? A. —I have no 
doubt of it, sir. 

Q. (By Mr. Wadleigh.) —Now, can you name any other man to 
whom you paid money, except the four individuals you have named? 
A. —I have stated to you, sir, I cannot. 

Q. — That was some time ago, —you can’t now ? A. — No, sir : I 
have tried to recall, as far as I can, the parties ; but I cannot. It is 
out of the question. 

Re-direct Examination. 

Q. (By Mr. Thompson.) —I have one or two questions I should 
like to ask. You mentioned at the time of writing that preliminary 
agreement in the Goodspeed case that your hand was not steady? 
A. — Yes, sir. 

Q. — What reason, if any, for that? A. —I am often in a condi¬ 
tion — 

The Chairman. This has been gone over, Mr. Thompson. 

Q. — I want to ask you what the relations between you and David 
Bursley were. Were your relations with him friendly, or otherwise? 
A. —We have not been friendly, sir, since 1866, when he published 
his report on the returned soldiers of the county of Barnstable. 

Q. —To what extent has that hostility been? A. —Well, sir, it 
has been very great. It has been growing continually ; on his side 
particularly, I think. I suppose that is natural enough. I would 
state, also, that there were difficulties between him and myself, in 
the probate court, as to the affairs of a young man for whom he was 
guardian. 

Q. — I want to ask one or two questions more. Have you any 
recollection so that you can state how many towns the money went to 
that you spoke of as having been paid out to meet party expenses? 
A .—My impression is, that there are but two towns in the county 
— as resting in my mind now — into which money did not go. One 
was Brewster, and the other Eastham. These were the only towns 
money didn’t go into. 

Q .—Do you know whether Mr. Jonathan Higgins has been here? 
A. —He has been here continuously since this began. 


1882.] 


SENATE —No. 150. 


588 


Q • — Have you any recollection so that you can state the amount 
of fees received by you as collector up to the time that you resigned? 
•A. — I cannot, sir. It was comparatively small. It was the season 
of the year when little was done at the custom-house. 

Q. (By Mr. Thompson.) —Now I wish to ask with regard to 
the books, whether you put on cash received where there were no 
charges on the books? A. —No, sir: where there are no charges, 
my book would be simply misleading if I put on the cash-entry. 

Q. (By the Chairman.) —Misleading in what respect? A. — 
There would be nothing to apply the entry to. The entries would be 
simply credits, if there had been no charges made. 

The Chairman. Oh! I thought you meant a cash-book. A. — 
No, sir. 

Q. (By Mr. Burdett.) —The question was asked the other da} 7 , 
Judge Day, in relation to the item first, account of Bradford L. 
Crocker. There was a charge of two hundred and seven dollars, as 
per schedule, or something of that kind ; and I notice that some of 
the Committee asked whether or not there was an} 7 schedule of these 
charges in the account. A .—There appears to be none ; but there 
undoubtedly was w ? hen the account was returned. I should not be 
likely, in the condition of feeling between the executors, — at any rate 
at that time, — to allow an account unless there were some items of 
expense stated. It is general with probate practice to consider that 
allowing an account under those circumstances in no way excludes 
any one as to items, —they are as open to exception as any thing. 

Q. (By the Chairman.) —Did the parties interested sign the 
account? or was it allowed on notice? A. — It seems to be allowed, 
and there is no evidence of notice. 

Q. —And not signed by the parties interested? A. — That some 
times happens, sir, in probate matters, before, you understand, the 
final account comes. 

Q. —Then, this is not the final account? A. — No, sir : there was 
a final account subsequently assented to by all the parties. I could 
say, if the Committee please, that this account was rendered, or 
rather the papers in the probate office up to 1873 were kept in a very 
loose way, in the county of Barnstable. I found it so when I came 
into the office; and for a great many years I strove to have a differ¬ 
ent arrangement, many papers having been lost from the manner in 
which the papers were kept. In 1873 we finally got the consent of 
the county commissioners to have the office put in another form 
of arrangement, and it was arranged under my charge ; and every 
thing is in its place, and has been ever since. 

Q. (By Mr. Kingsbury.) — I would like to ask one question : per¬ 
haps it has been answered before ; that is, how many lawyers there are 
in Barnstable County, if you know? A. — There are only two, sir. 


534 


HEARING —JOSEPH M. DAY. [March, 


Q .—Taking the whole county? A. —There are myself and son 
in Barnstable, Mr. Harriman in Wellfleet, and Mr. Higgins of Yar¬ 
mouth. Mr. Hopkins, to whom reference has been made, is clerk 
of the court— Then, there is Mr. Whitmore, Mr. Hutchinson — 
(neither has argued a case, or managed it, or taken part) — 

The Chairman. There are three lawyers in the county, including 
yourself and son? A. —I class them all as lawyers, but — 

Q. (By Mr. Kingsbury.) —Take the men admitted to the bar: 
how many are there ? A. — There are seven in the whole county. 
There is one in Provincetown, — Mr. Hutchinson. 

Q. (By the Chairman.) —You say seven, including yourself, 
then? A. —Yes, sir: seven, including myself; but, of the seven, 
there are perhaps three who do business in court. 

Q. (By Mr. Wadleigh.) —You say your son is in practice there? 
A. —Yes, sir. 

Q .—He occupied the same office with you? A. —Part of the 
time, sir. I need his services at times. 

Q. (By Mr. Burdett.) —Has your son an}’ other office? A. — 
Yes, sir. 

Q. — Where ? A. —- In Harwich. 

Q. — How much time does he spend there? A. —Perhaps two 
days in the week. 

Q. — Doesn’t Mr. Harriman occupy the Grand Jury room as an 
office? A. —Yes, sir: he has for years. 

Mr. Burdett. Here is a letter from Judge Lowell, which I would 
like to read. 

The following letter from Judge Lowell was read by Mr. Burdett, 
and admitted by consent of all parties : — 


U. S. Court House, Boston, 
March 15, 1882. 

T. H. Talbot, Esq. 

Dear Sir, —You have called my attention to the printed Report of tlie Joint 
Committee of the Legislature (1881) on Judge Day’s case, pp. 55 and 341, con¬ 
taining a report of what is said to have occurred before me in the trial of a 
cause in which Judge Day was of counsel before me. 

As well as I can recollect, both the witnesses state what I said with substan¬ 
tial accuracy, if rightly understood. Though I cannot recollect the exact con¬ 
versation (so to call it), I know that the substance of what I said was, that 
it was no business of mine to instruct Judge Day in his duties as judge of pro¬ 
bate of Massachusetts. 

I did not undertake to give any opinion upon the law of Massachusetts; but 
said, that, if it was to be understood as Mr. King understood it, still I had noth¬ 
ing to do with the matter. 

Yours truly, 


[Case for Remonstrants closed.'] 


J. LOWELL. 


1882.] 


SENATE — No. 150. 


535 


TESTIMONY FOR PETITIONERS IN REBUTTAL. 

MAJOR S. B. PHINNEY. Sworn. 

Q. (By Mr. Wadleigh.)—Y ou are the gentleman whose name 
appears upon this record to be the leading remonstrant? A .— 

I am. 

Q. —How long have you lived in Barnstable County? A. — Well, 
with three or four 3’ears’ exception, through a long period, — over 
seventy years, — about seventy years. 

Q. — How long have 3*011 known Mr. David Bursley? A. — We 
were boys together : we came up together. 

Q. — Do 3’ou know what his reputation is for truth and veracity? 
A. — His reputation for truth and veracity is good. 

Cross-Examination. 

Q. (By Mr. Thompson.) —Haven’t j’ou heard it questioned lately? 
A. — I may say, that in the political discussions that go on there, 
warmly contested as the}’ are, as with my friend Day’s reputation so 
with Mr. Bursley’s, often there are shots fired that go through the 
entire village — 

Q .— That is not the question. Do you say that you have ever 
heard his reputation for truth questioned,—that is all? A. —By 
parties that I have no reason to suppose — 

Q. —You have heard it questioned? A. —Among politicians, — 
yes, sir: not as a business man, never. 

Q. — Now, let me see if I understand 3*011. You say that in finan¬ 
cial matters you have never heard his reputation questioned? 

Mr. Harriman. He said business matters. 

Mr. Thompson. I suppose they are substantially the same. 

A. — If I may explain, I have done business with him — 

Q. —I haven’t asked you that. A. — Haven’t I a right to say 
what his character is — 

Q. —You have only a right to answer the questions. 

The Chairman. The first thing you are to do, Mr. Phinney, is to 
answer Mr. Thompson’s questions and then, after jou get through, 
if you have any statement that you wish to make, Mr. Wadleigh will 
give }*ou an opportunity. 

Q._Now, sir, what I ask you is simply this, — and you can answer 

3'es or no,_whether or not 3 011 have heard his reputation for truth 

and veracity questioned? A. —Not among those whom I relied 

upon. 

q. _You say that you have not heard it questioned? A. — Not 

among those whom I relied upon, — if that is an answer. 


536 


HEARING —JOSEPH M. DAY. [March, 


Q. —Whom have } r ou heard question it? A. — My friend Da} T . 

Q. — Who else ? A. — Politicians, — Republicans. 

Q. — And to a considerable extent, — a good many? A. —Not 
very many. 

Q. —You speak of his business transactions,—what business 
transactions do you refer to? What is his business? A. — I have 
had business transactions with David Bursley to the amount of thou¬ 
sands of dollars. 

Q. — What is his business? A. — In real-estate matters relating 
to insurance policies. 

Q. — I am asking you what his business is ? A. — He has been 
for a considerable time a farmer, holding the office of sheriff, and a 
laboring man for a good many } T ears. He has been a farmer in my 
own neighborhood. 

Q. — Hasn’t it been substantially that of a politician for some 
twenty years or more, wouldn’t you say? A. — We have been ex¬ 
changing shots. 

Q. — You know what I mean. Hasn’t it been substantially that 
of a politician? A. —The shots have been. 

Q .—I know; but hasn’t that been his business? A. —I must 
say that is the feeling to a considerable extent among politicians. 

Q. — You speak of his being a farmer: he has been a very small 
farmer, hasn’t he? A. — No, sir: he has done years’ labor as a 
laboring man and as a farmer; he has done work about the farms. 

Q. — Fifteen or twenty years? A. — Yes: I should suppose ten 
years he labored as a farmer. 

Q. — How large a farm has he? A. —Well, he labored for }’ears 
upon farms. 

[The Chairman suggested that the evidence relating to Mr. Bursley’s 
business be stricken out; but at Mr. Wadleigk’s request it was 
retained.] 

Q. (By Mr. Wadleigii.)—D id you, or did any of the remon¬ 
strants, so far as you know, ever employ any counsel to appear here 
in this case? A. — Not to my knowledge. 

Q. — Did you ever hear of such a thing. A. — I know of no such 
thing. 

Q. — Was any authority ever given by you to employ counsel? 
A. — None at all. 

JOHN KENDRICK. Sworn. 

Q. (By Mr. Harriman.) —Where do you live? A. — In Orleans. 

Q. —You know David Bursley? A. — I do, and have known him 
for fort} r years, — more than that, probably. 

Q. — Do you know what his general reputation is for truth and 
veracity? A. —It is with us, so far as I know, good. 


1882.] 


SENATE —No. 150. 


537 


Q. — Are you confined wholly to the town of Orleans? Do you 
not frequently visit other parts of the county? A. — Oh ! I am about 
the county a good deal; frequently at Barnstable, perhaps. 

Cross-Examination . 

Q. (By Mr. Thompson.) — Where do you reside? A. — I reside 
at Orleans. 

Q. — How far is that from Barnstable ? A. — About twenty miles 
down the Cape. 

Q -— How often have you been at Barnstable for the last five 
years ? A. — Two or three times a year. 

Q • — When j’ou have been at Barnstable, you have never heard his 
reputation for truth and veracity questioned ? A. — I never heard 
David Bursle} T ’s — 

Q • — You can answer the question directly. A. — Never, sir. 

Q •—You never heard any discussion ? A. — I don’t recollect 
hearing any. 

THOMAS D. SEARS. Sworn. 

Q. (By Mr. Harriman.) — Where do you live? A. — Brewster. 

Q —How long have you lived in Brewster? A .—Since I was 
born. 

Q. —Are you one of the selectmen of Brewster? A. — Yes, sir. 

Q. — Do you know David Bursley ? A. — I do. 

Q. — How many years have you known him? A .—I suppose 
fifteen years. 

Q. — Do you know what his general reputation is for truth and 
veracity? A. —I never heard it questioned. 

Q .—Whether it is good or bad? A. — It is good, so far as I 
know. 

Cross-Examination . 

Q. (By Mr. Thompson.) —You say you have never heard it 
questioned, as I understood } T ou? A. — Yes, sir. 

Q .—You live at Brewster there, some tw r elve miles away from 
Barnstable, isn’t it? A. —Fourteen. 

Q. —Are you at Barnstable often? A. —I am there perhaps three 
or four times a year. 

Q. —There on business, I suppose? A. —Yes, sir, on business. 

Q. — You transact your business, and go back home? A .—Yes, 
sir, w T hen I have been there on court business. 

Q. —You say you haven’t heard the matter discussed at all there? 
A. —No, sir : I don’t know that I have. 

Q .—You don’t remember of ever hearing that discussed? A .— 
No, sir. 


538 


HEARING —JOSEPH M. DAY. [March, 


CLARK LINCOLN. Sworn. 

Q. (B3 7 Mr. LIarriman.) —Where do you live? A. —Barnstable. 

Q. —Do 3'ou know David Bursley? A. — I do. 

Q. —How long have 3 t ou known him? A. —Fort3 7 3 T ears. 

Q .— You were representative last year from Barnstable? A .— 
I was. 

Q .— What is David Bursley’s reputation for truth and veracity', 
if 3*011 know it,—good or bad? A. — It is good, all that I ever 
heard of him. 

Cross-Examination. 

Q. (B3 7 Mr. Thompson.) — You never heard the matter discussed 
at all, did you? A. — Not until within a week. 

Q. —You never did before? A. —No, sir. 

Q. — How far do 3*011 live from him ? A. — Five miles. 

Q. —What part of the town? A. — I live on the north side, and 
he on the south side. 

Q .—How frequently are you over to Barnstable? A. — Oh! not 
more than three or four, or five or six, times a 3 7 ear. 

Q. — Over on business, I suppose, and return home? A .— ; Yes, 
sir. 

Q. — You have no particular associations at Barnstable Centre, or 
whatever it is termed? A. —No, sir. 

DR. HENRY SHORTLE. Sivorn. 

Q. (By Mr. Harrovian.) — You live at Provincetown ? A. — Yes, 
sir. 

Q. — You know David Bursle3 7 ? A. — Yes, sir. 

Q. — How long have 3*011 known him? A. — Fifteen or sixteen 
3*ears, I guess. 

Q. — Do 3 7 ou know what his general reputation is for truth and 
veracity? and, if so, state what it is. A. — His general reputation 
I consider good. 

Cross-Examination. 

Q. (By Mr. Thompson.) — Provincetown is about how many miles 
from Barnstable? A. — Foily-five miles. 

Q. — Have 3 7 ou ever lived in Barnstable ? A. — No, sir. 

Q- — Do you have occasion to go there frequently ? A. — Quite 
often. 

Q. —How often? A. — Six or eight times a 3*ear, perhaps. 

Q . —Do you think you have been six or eight times in any 3 7 ear? 
A. —Yes, sir. 


1882.] 


SENATE —No. 150. 


539 


* 


Q •—What }*ear were you there as many times as that? A .— 
Last }*ear. 

Q.—What were 3*011 there for, — on business? A .—I was on 
business at the court-house and at the collector’s office. 

Q •—Did you ever hear his reputation for truth and veracity 
spoken of or discussed? A. — I have heard parties speak against 
Mr. Bursle}*, as against other men. 

Q .—I didn’t ask you about other men. Did you think I asked 
you how 3*011 had heard in regard to other men? A. —No, sir. 

Q. —Now, sir, how frequentl}* have you heard his reputation for 
truth and veracity discussed? I do not mean within a week, or ten 
da}*s, or a fortnight, or a month, — that would not be a fair question. 
A. — Well, perhaps once a year. 

Q. —Where, — up at Barnstable? A. —Generali}* at Barnstable. 

Q .— You think about once a year? about one-sixth part of the 
times you have been at Barnstable, you have heard that discussed — 
it has been a subject of discussion? A. — Not a matter of discus¬ 
sion. I have heard individuals speak against Mr. Bursle}*,—not a 
matter of general discussion. 

Q. —And speak about his reputation for truth and veracit}*? A. 
— Yes, sir. 

Q . (B}* Mr. IIarriman.)— Whether you attend the Yarmouth 
camp-ground at a certain portion of the year? A. — I do. 

Q. —How long are you there? A. —Six weeks. 

Q. — Whether or not David Bursley has been accustomed to attend 
there? A. —Yes, sir. 

BRADFORD B. BRIGGS. Sworn. 

Q. (By Mr. Harriman.) —You live at Sandwich? A. —Yes, sir. 

Q. —And you are representative from Sandwich? A. — Yes, sir. 

Q. — You know David Bursley? A. — Yes, sir. 

Q .—How long have you known him? A. — Well, a matter of 
fifteen or twent}* years,—-twenty years, certainly. 

Q. — Do you know what his general reputation for truth and veracity 
is? and, if so, what is it? A. — I should say it was good. I have 
never heard any imputation upon his character in that respect. 

Cross-Examination. 

Q. (By Mr. Thompson.) —You live how many miles from Barn¬ 
stable? A. — I think it is twelve miles. 

Q. — Are you frequently over there ? A. — No, sir. 

Q. — You don’t have much business with Barnstable? A. —Very 
little business. 


540 


HEARING — JOSEPH M. DAY. [March, 


Q. — How often should y 7 ou say 7 y*ou were there on the average for 
twenty* y*ears? A. — Once in two years, — about that. 

Q .— You go down on one train, and return on the next? A. — 
Sometimes. 

Q. — If I understood y*ou correctly, y 7 ou said 3 T ou had never heard 
the question discussed? A. —Never. 

Q. (By 7 the Chairman.) —Is Mr. Bursley a well-known man 
throughout the county? A. —Yes, sir: a public man, and has been 
ever since I have known him, — a man highly respected so far as I 
know. 


WILLIAM NYE. Sworn. 

Q. (B3 t Mr. Harriman.) —You live at Falmouth? A. —I do, sir. 

Q. —Do 3 t ou know David Bursle3 r ? A. — Yes, sir. 

Q .— How long have you known him? A. — Between thirty* and 
forty years. 

Q. — Do you know what his general reputation for truth and ve- 
racit3 T is? A. — I never-heard an3 T thing but what it was good. 

Cross-Examination. 

Q. (B3 t Mr. Thompson.) — You live some twenty*-two miles from 
Barnstable? A. — Yes, sir. 

Q. — Are 3 T ou there frequently ? A. — Well, I think on the aver¬ 
age about twice a 3 T ear. 

Q. — You have no particular business connection with Barnstable, 
I suppose? A. — No, sir. 

Q. — And, if I understand 3*011 correctly, you sa3 T that 3*011 never 
heard the matter discussed at all? A. — Never. 


ADOLPHUS DAYIS. Sworn. 

Q. (By Mr. Harriman.) —Where do you now live? A. —Boston. 

Q. — l r ou formerly lived at Barnstable? A. — Yes, sir. 

Q. —You have known David Bursley*? A. —Yes, sir. 

Q. — How long have y*ou known him? A. — Fifty 7 or sixty* years. 

Q. — How often do you visit Barnstable ? A. — Sometimes two or 
three times a year. 

Q. — How long do you stop when y*ou go down? A. — Two or 
three day*s. 

Q. — Do 3*011 know what David Bursley’s reputation is for truth 
and veracity? A. — Good. I never heard it questioned before I 
heard it in this room. 


1882.] 


SENATE —No. 150. 


541 


Cross-Examination. 

Q. (B} r Mr. Thompson.) — You say that you haven’t lived there 
for how long a time? A. — Well, I haven’t for a number of years. 

Q . — About how many ? A. — Perhaps twenty-five or thirty years. 

Q . — When you go down, I suppose you go down on a visit? A. 
— Yes, sir. 

Q .—For a little recreation? A. — But I have alwaj^s had busi¬ 
ness with Mr. Bursley here, too. 

Q .—You say that } 7 ou haven’t ever heard the matter discussed? 
A. —I never did. 

KEY. DR. A. J. CHURCH. Sworn. 

Q. (By Mr. Harriman.) —Where are you now living? A. — I 
am living at Providence. 

Q. —What is your profession? A. —I am a clergyman. 

Q. — Have you ever lived upon the Cape? A. —I have. 

Q. — Preached there ? A. — Yes, sir. 

Q .—You know David Bursley? A. —I have known him about 
fourteen years, — a little over. 

Q. — You know what his general reputation is for truth and ve¬ 
racity? and, if so, state whether it is good or bad. A. — It is good, 
as far as I know. 

Q. (By the Chairman.) — How long did } t ou live on the Cape? 
A. — I lived in his neighborhood five years and a half; that is, on 
the Cape at Edgartown, and was at the camp-ground several years. 
I got acquainted with him there fourteen years ago last summer. I 
have been at his house often, and he has been at mine. 

Cross-Examination. 

* 

Q. (By Mr. Thompson.) —Did you say that you had been settled 
at Barnstable ? A. —No, sir. 

Q. — Where? A. — I was at Wellfleet and Edgartown. 

Q .—Wellfleet is about how far from Barnstable? A. -Well, I 
should say thirty miles. 

Q .—Edgartown is about how far? A. — Well, perhaps a little 
more. 

Q .—About how far? A. — To come around by New Bedford, I 
should say perhaps fifty miles : I don’t know. 

SAMUEL SNOW. Sworn. 

Q. (By Mr. Harriman.) —Where do you live? A. —Barnstable. 

Q. — You know David Bursley? A. — I do. 


542 HEARING —JOSEPH M. DAY. [March, 

Q. —How long have you known him? A. — Known him forty-five 
years. 

Q. — What connections have 3 T ou had with him, —how intimately 
have you known him ? A. — I have been connected with him as 
trustee of the savings bank, and have met with him in meeting for 
three or four years sure. 

Q. — Now, if } t ou know, state what his general reputation is for 
truth and veracit} r . A. — In all my relations with Mr. Bursley, I 
never heard any thing, in his business relations — 

Q. (By the Chairman.) —What is his general reputation? good 
or bad ? A. — Good. 


Cross-Examination . 

Q . (By Mr. Thompson.) —You have taken quite an active part in 
the campaign against Judge Da} r , haven’t you? Answer that by }’es 
or no. A. —Yes. 

Q. — And have written in the local papers against him? A. —No, 
sir. If I can only say 3’es or no, I can only say no. If you will 
allow me to explain, — you say “ papers ” ? 

Q. —Any local paper? A. —I will say yes, if 3 T ou put it 
“ paper.” I wrote a letter, not against him, but to Mr. Swift. 

Q. — Since this investigation has been going on? A. — I think it 
commenced. 

Q. — You think it commenced since this investigation? A. — I 
think it was since this investigation: that is my impression. 

Q. — Do you know the present condition of Mrs. Mary Good- 
speed? A. —I think her health is not veiy good. I saw her about 
a month ago, and she said it was better than it had been. 

Q. (B}^ Mr. Bruce.) —Mr. Lothrop testified that you had ques¬ 
tioned Mr. Bursley’s reputation. A. —Yes, sir: I know he did. 
I didn’t see it until yesterday morning. I wrote Mr. Lothrop a 
letter — 

Q. — Is it true that 3*011 did? A. —On the most thorough ex¬ 
amination of myself, I cannot recollect an3 T instance in my life 
where I could have made that remark to Mr. Lothrop. Still, I should 
like to have heard from Mr. Lothrqp, to know. I cannot recollect 
any such instance. 

Q. (By Mr. Thompson.) —Have you never heard David Bursley’s 
reputation for truth and veracity questioned? A. — May I qualify 
it? I have political^; but in his business relations I sa3 T I never 
did. Politically I have a good many times. 

Q. (B3^ Mr. Harriman.) — Did you make ai-y remark to J. K. 
Baker that his reputation for truth and veracity was not good, or 
an3 r thing that could be construed to that? A. — Mr. Bursley’s? 


1882.] 


SENATE —No. 150. 


548 


Q' — l-Gs, sir. A .— I don’t remember of having any conversa¬ 
tion with Mr. Baker in relation to Mr. Bursley for the last two 
years. 

Q • (Ity Mr. Thompson.) —You live about five miles from Barn¬ 
stable ? A. — I live at Hvannis: I go over to Barnstable two or 

4 / 

three times a week. 


JOHN A. CLARK. Sworn. 

Q. (By Mr. Harriman.) —Where do you live? A. —Eastham. 

Q • —You are representative from Eastham? A. — I am. 

Q •—You know David Bursley? A. —Yes, sir: I know him,— 
not particularly acquainted with him, but I know him by sight very 
well. 

Q • —You have known him how long b}^ sight? A. —I should say 
for fifteen }’ears or more. 

Q. — You know what his general, reputation is for truth and vera¬ 
city, whether it is good or bad? A. —I never heard it questioned. 

Q. — Have you any knowledge upon that subject? A. —No, sir : 
not personalh T . 

Cross-Examination. 

Q. (By Mr. Thompson.) — Do you say that you have no personal 
knowledge of his reputation for truth and veracity? A. —Yes, sir. 

Q. — How far is Eastham from Barnstable ? A. — Twenty-four 
miles. 

Q. (By Mr. Wadleigh.) —What do you mean when you say you 
have no personal knowledge of his reputation ? A. — I have had no 
business relations with him whatever. 

The Chairman. The question is, what the people generally of the 
county say in regard to his truth and veracity, — whether his reputa¬ 
tion is good or bad. 

Witness. I never heard any one question his truth or veracit}\ 

Q. (By Mr. Thompson.) —You never heard the matter discussed? 
A. —No, sir. 

BRADFORD L. CROCKER. Recalled. 

Q. (By Mr. Wadleigh.) —Whether you kept, at the time of the 
payment of the five dollars to Judge Day, which you have testified 
about, a cash-book ? A. — I did. 

Mr. Thompson objected. 

Q. —State whether you have examined, or could find on the cash¬ 
book you had at that time, the payment to Judge Day? 

Mr. Thompson objected. 



544 


HEARING —JOSEPH M. DAY. [March, 


The Chairman. I should think that would be competent, to fix 
the date of the payment. 

Q. (By Mr. Wadleigh.)— Produce the cash-book, and give us 
the date. A. — Dec. 30 . 

Q .—You read the entry there, please [referring to small memo¬ 
randum-book in Mr. Crocker’s hand]. 

Mr. Thompson objected. [To witness.] What date do } T ou say it 
is? A. —Dec. 30 , 1870 . 

Q. (By Mr. Wadleigh.) — You find the entry there? 

Mr. Thompson objected to this mode of proceeding. 

Q. (By Mr. Wadleigh.) — Will you state, Mr. Witness, whether 
the entry upon that book enables you to fix the date with certainty ? 
A. — It does, sir. 

Mr. Wadleigh. That is all. 

Q. (B}' the Chairman.) —Is this five dollars that was paid Dec. 
30 , 1878 ? 

Witness. 1870 , sir. 

Q. — Do 3’ou give us to understand that that is the payment of five 
dollars which j t ou testified about in your previous examination? A. 
— It is, sir. 

Q. —At the Parker House? A. — It is, sir. 

Q. (B}^ Mr. Wadleigh.)— I will ask Mr. Crocker whether he 
knows when the barn was removed — as to the date of this — 

Mr. Thompson. No, no : I object. 

Mr. Wadleigh. If you will allow me to finish the question. [To 
witness.] Do }’Ou know when the barn was removed, with reference 
to the date on your cash-book? A. —No, sir, I do not know. 

Q. — Whether before or after? A. — I don’t know. 

Q. —When did you make that memorandum in your book? A. — 
At the date named there, — Dec. 30 , 1870 . 

Q. (By Mr. Thayer.) — I would like to ask you a question or 
two, sir. I am not quite clear on a point here. Isn’t it true that 
you and Mr. Nye, your co-executor, had some misunderstanding 
about the moving of the barn within less than two years after you 
and he were appointed executors of that estate ? A. — I should 
think not. I think it was later than that; but I am not positive. 

Q. — Have you seen Mr. Nye’s statement, his evidences here 
before us? A. — I have not, sir. 

Q. —You are not positive; but your impression is, that it was 
more than two years after your appointment? A. — Yes, sir: I 
think so. 

Q. —And I want to ask you, then, whether you are positive, that at 
the time you saw Judge Day at the Parker House, and paid five dol¬ 
lars, there had nothing occurred to direct your attention to the fact 


1882.] 


SENATE —No. 150. 


545 


that the barn was about to be moved, or was talked of beino; moved 
by Mr. Nye ? A. — I am not positive as to the time. 

Q- —As to the fact, my question was : Aro you positive that your 
attention had not been called to the fact that Nj’e was talking of 
moving the barn, or had moved it, or was thinking of moving it? 
A. —I am not positive in regard to that. 

Q . — Then, it may have occurred at that time ? A. — I should say, 
to the best of my recollection, it would have been nearer four }’ears 
than two that the barn was removed, from the time of our appoint¬ 
ment as executors. 

Q .—Was it before four years? A. — I don’t fix that. That is 
only my impression. 


CHARLES F. GOODSPEED. Recalled. 

Q. (By Mr. Wadleigh.) —When you paid Judge Day this fifty 
dollars, was any thing said as to how that money should be divided? 

Mr. Thompson. I don’t know what part of the case this comes in. 

Q. (By Mr. W adleigh.) — Now state whether there was any thing 
said as to how that money should be divided, the payment, etc. ? A. 
— I asked him how it should be divided; and he said twenty dollars 
should be charged to myself, twent} 7, dollars to my brother, and ten 
dollars to my mother. That is all he said. 

Q. (B}^ Mr. Thompson.) —I don’t suppose you remember the 
whole conversation at the time? A. — I don’t remember every word 
or the terms of it. 

Q. — Do 3 r ou remember whether or not you stated any thing in 
substance like this : “ My brother and mother get the benefit of this, 
as well as myself ” ? A. —I don’t remember whether I did or not: 
I asked him how it should be divided. 

Q. (By the Chairman.) —How came 3*011 to ask him that ques¬ 
tion? A. —I didn’t understand that fifty dollars was wholly for my 
own benefit, and I wanted to know how it should be charged on the 
account. 

Q. _Did you ask him what it covered? A. —I asked him if that 

covered all our indebtedness. 

Q. (By the Chairman.) —All our indebtedness? A. —Yes, sir. 

Q. (By Mr. Thompson.) —I don’t suppose now you would be 
certain as to whether it covered it — certainly not, whether it cov¬ 
ered all the indebtedness? A. — This is the idea I had in my mind. 


546 


HEARING—JOSEPH M. DAY. [March, 


JONATHAN HIGGINS. Sworn. 

[Testimony taken in 1881.] 

Cross-Examination by Mr. Burdett. 

Q. —Mr. Higgins, how long have you lived in Barnstable County? 
A. — It is my native place. Always. 

Q. — And you say that you were register of probate at one time 
down there? A. —From 1858 to 1874. 

Q. — And just previous to that, did you hold any office? A. — I 
was register — elected register of insolvency — before the two courts 
were combined. 

Q. — How long were you register of insolvency previous to the con¬ 
solidation of the courts ? A. — I was absent from the Commonwealth 
at the election ; and my impression is, that I returned to take my 
office in April of 1857. • I remained in that office until the two courts 
were combined : I cannot say justly when that was. 

Q. — Well, now, I want to get at the period of time over which you 
held a commission as register of insolvency before the consolidation 
of these courts in 1858? A. — I do not think I can give it. 

Q. — Well, was it one year or more? A. —It is impossible for me 
to tell until I examine the dates of these two courts. I was elected at 
the organization of the court, but was not at home. 

Q. — I did not ask j’ou whether j t ou were at home. A. — I know ; 
but I took my office in the spring of 1857. I was elected as register 
of probate and insolvency in the fall of 1858, and took my office in 
January, 1859, — the 1st of January, 1859. 

Q. — And, since the time that you were register of probate and in¬ 
solvency, have 3 ’ou held an office in Barnstable Count} r ? A. — Out¬ 
side of that? 

Q. —Yes : since you gave that up in 1874, have you held office in 
the county of Barnstable? A. —I have. 

Q. — County commissioner? A. —Yes, sir. 

Q. — Until when ? A. — Until this last January, — six years. 

Q. — So that 3 T ou have held office in that county for at least twenty 
years, have you not, in one way or another? A. —Yes, sir : a little 
over twenty years. 

Q. — Now, Mr. Higgins, you have heard your name mentioned in 
regard to the vacancy caused by Judge Day’s possible impeachment, 
have you not, as judge of probate and insolvency? A. — How lately 
do you mean ? 

Q • — At any time, sir? A .—There was a time when he was to 
resign, and my name was used then. 


1882.] 


SENATE —No. 150. 


547 


Q • — I am asking now whether 3*ou have not known 3 r our name to 
be used in connection with the possible vacancy caused b3* his removal 
by an address to the Governor and Council from both Houses of the 
Legislature? A. —No, sir, no further than this : I remember once or 
twice one or two individuals spoke to me, and asked me if I would not 
take the office, provided there was a vacanc3 7 . Do 3*ou want my 
answer? 

Q. — I have not asked you for it. A. — All right. 

Q . — Now I want to ask 3^ou as to this fact, if it is a fact: did 3*011 
tell Mr. Simeon S. Sanborn that if Judge Da3 7 was removed, and Mr. 
Harriman was not appointed, your name had been used in connection 
with the vacancy? A. — I may have done. 

Q. — Have 3’ou made that remark substantially to Mr. Thacker? 
A. — I ma3 T have done. 

Q. — D030U recall whether 3*011 have made a similar remark to an3 T - 
bod3 T else? A. —I do not know that I have, and I do not know but 
I have. It was only upon certain conditions. Those conditions do 
not exist, and I told them I would have nothing to do with it. 

Mr. Burdett. We hope those conditions will not exist. 

Q .—Mr. Higgins, do 3 7 ou know whether Judge Day was at an3* 
time suffering from physical indisposition while you were register of 
probate? A. — Yes, sir: he complained of it, and I think he was. 

Q. —Do 3*ou know that he contracted a disease in the arm3 7 which 
rendered him liable to fits of pain at very frequent intervals? A. — 
That was his complaint. 

Q. — Did 3 T ou notice whether it had an3* effect upon his disposition 
so as to make him a little cheerful one day and rude the next? A. — 
I could not sa3 r that I did. 

Q. — Have 3*ou ever noticed that physical pain has any thing to 
do — 

The Chairman. I hardly think he can aid the Committee in such 
a matter as that. 

Q. —Now, Mr. Higgins, you have spoken of his elation and de¬ 
pression upon the bench, and that is all 3’ou have spoken of as far as 
I have been able to read the testimony. Can you swear that his 
elation and depression, so far as it existed, in your opinion, was not 
caused by physical indisposition in the one case and freedom from 
pain in the other? A. — In regard to that — 

Q .—Can you answer the question I ask you? If you can, state 
positively whether or not that be so. And I should suppose an answer, 
yes or no, would cover the ground. A. — I was going to answer, it 
would depend on whether I had the evidence he had been using 
liquor. If I had the evidence that he had been using liquor, I should 
attribute it to that; if I had not, it might be something else. 


548 


HEARING —JOSEPH M. DAY. [March, 


Q. —Now, your idea is, Mr. Higgins, is it not, that a man cannot 
take intoxicating liquor to any extent unless it affects him? A. —I 
would not say as to the amount that he might take that would affect 
him ; but I suppose that to be the object for which people take liquor, 
— to enjoy the influence of it. 

Q .—Well, that is what I supposed. You are a prohibitionist in 
principle, are you not? A. — Yes, sir. 

Q. —And a teetotaller in practice? A. — I am, so far as using it 
as a beverage is concerned. 

Q .—Then, you ^lo not disapprove of people taking it for pain or 
medicinal purposes? A. —For medicinal purposes I do not, when 
recommended by a physician. 

Q. — You would leave that to the persons themselves, or to the 
physician ? A. — Yes, sir. 

Q .—Now, are you prepared to state, sir, that at any of these 
times when Judge Day gave evidence of elation or depression upon 
the bench, that he had just indulged in the use of intoxicating 
liquors? A. — There were times when I thought that he had. 

Q .—I understood you to say that before. I ask you if you 
remember any thing in regard to that fact, whether or not at any of 
these times, when he appeared to be depressed or elated, he had 
recently indulged in intoxicating liquors? A. —When I have smelt 
them I suppose that he had, and believe that he had. 

Q. —You have taken pains, I understand, to smell the breath of 
Judge I)a3 r ? A. — No, sir : I never said it, and never did it. 

Q. —I believe you said that the smell you noticed was either of 
whiskey or rum. 

The Chairman. He did not say that. He referred to whiskey and 
rum, but he did not sa} T that he knew what it was. 

Mr. Burdett. “All I can say is, it had the smell, the alcohol 
smell: it might have been whiskey; it-might have been rum.” 

The Chairman. He did not sa}^ certainly that it was one or the 
other. 

Mr. Burdett. I may have stated it a little strongly. 

Q. — I ask you whether 3'ou are acquainted with the difference in 
the smell between rum and whiske3 T ? A. — I do not believe lean 
distinguish it. 

Q. —Would you be able to sa3^ whether a man had been drinking 
gin, whiske3 T , rum, or brandy? A. —No, sir: I would not sa3 T that 
I could distinguish it. 

Q. —Do you know whether those things smell alike? A. — There 
is a kind of alcoholic smell about what is called whiskey and brandy 
and gin, etc. ; but in regard to the difference between whiskey and 
gin that we use, — that people use, — I am not an expert. 


1882.] 


SENATE — No. 150. 


549 


Q •—Now, Mr. Higgins, you stated in your examination, “All I 
can sa}' is, it had the smell, this alcoholic smell: it might have 
been whiskey ; it might have been rum. I do not mean to sa}^; that 
is, I cannot say unless he has told me. I do not know but he has 
told me that he used whiskey occasionally at various times.” Now, 
is not your recollection distinct about the fact that he has told you 
that he used whiskey at different times? A. —Yes, sir. 

Q. — And, knowing that fact, didn’t it aid you in determining 
whether or not he had been using liquor when he had been depressed, 
or otherwise? A. — I cannot say as to that. I had other evidence. 

Q. —Will you say that that is not so, — that the fact that he had 
told you that did aid 3’ou in determining whether or not his elation 
or depression was in consequence of the use of intoxicating liquors? 
A. —No, sir: I think the evidence I had before me at the time 
would be the smell of it. 

Q. — And are you prepared to say that the fact, that 3’ou knew 
from his own statement that he sometimes drank whiskey, did not aid 
you in coming to that determination? A. — I don’t think it did, if I 
ma} T be allowed to explain, Mr. Chairman. 

The Chairman. You will have an opportune. 

Q. — Did you ever see Judge Day drink a glass of liquor before 
going upon the bench? A. — No, sir, I would not say that I had. 
What would be called going upon the bench would be, I suppose, 
when he has taken his seat in the court-room. 

Q .— Did you ever see Judge Day take a glass of liquor on the 
same day that he held court, before he went upon the bench? A. — 
There have been times — 

Q. — Now, sir, answer that question. 

The Chairman. Answer it as directly as you can. 

The Witness. I should say that there have been times — 

Mr. Burdett. Now, sir, stop. Have you ever seen Judge Day 
take a glass of liquor on the same day that he held probate court, 
and before going upon the bench ? You either know, or do not know ; 
or you can say you do not remember, —one or the other. 

The Witness. I would not say that I had seen him take a glass 

of liquor. 

Q. — Now let me ask you if you ever in your life saw Judge Day 
take a glass of liquor? A. —Yes, sir. 

Q. — Where ? A. — At Wellfleet. 

Q. _ How many times? A. —Well, I would not say it was more 
than once. 

Q. — When was that? A. — I could not say when it was. 

Q. _How many years ago ? A. — Several: while I was register 

of probate. 


550 


HEARING — JOSEPH M. DAY. [March, 


Q. —That glass of liquor, then, do you know what it was? A. — 
It was called whiskey. 

Q. — That glass of liquor was the only one that you ever remem¬ 
ber having seen him take, or not? A. —As 30U put the question, it 
is, I think, the only time I have seen him take a glass of liquor. And 
I am willing to sa} r further that I think the man was suffering with 
pain when he took that. 

Q .—You and Judge Day differ very widely on the subject of in¬ 
toxicating liquors, don’t you? A. — Well, we have had frequent 
discussions. 

Q. — Can 3 T ou answer the question? A. — Yes, sir: we have at 
times, and sometimes we cannot agree. 

Q. —Well, your general ideas upon the subject of liquor, so far as 
they have been expressed to each other, are entirely different, are 
they not? A. —They have been. 

Q. — And that has been confined to the legal view of the temper¬ 
ance question, has it not? A. — I should think it had. 

Q. — That is, as to the power and propriety of legislation interfer¬ 
ing with the use of liquor. And you have held several, if not many, 
warm discussions on the subject, have }^ou not? A. — We have 
discussed it frequently. 

Q. — In which 3'ou were aiming at entirely different conclusions ? 

A. — As to aiming at different conclusions, that might be inferred. 

Q. — You differ as to the means of accomplishing the same end, 
did you not? A. — Yes, sir. 

Q. — You never heard Judge Day advocate the general use of 
liquor, did } T ou, or any thing of that sort? A. — I don’t think I have 
in that form. 

Mr. Burdett. That is all. 

The Chairman. Now you may make the explanation you wished 
to, Mr. Higgins. 

Mr. Higgins. The question that was put to me by Mr. Burdett 
was, had I ever seen Judge Day drink a glass of liquor? The expla¬ 
nation I wish to make is, that I have seen him take liquor from a bot¬ 
tle, a little flask that he might have with him; but I am willing to 
say, not frequentty. If the question was put in that form, I could 
not answer. 

Mr. King. There was one other suggestion you wanted to make ; 
and that was in connection with the office of judge of probate and 
insolvency, if there should be a vacancy. * 

The Witness. I have almost forgotten what that was. 

The Chairman. What I had in mind was this : there was some 
question put to you as to whether the information that Judge Day 
gave of his having drank whiskey sometimes aided you in forming an 
opinion, and in connection with the answer you desired to explain. 



1882.] 


SENATE —No. 150. 


551 


The Witness. He has told me that he used whiskey ; and I do not 
think that influenced me in deciding whether he had been using stimu- 
lants or not, unless I smelt the liquor in the room with him, in his 
presence. 

Q . (By Mr. Burdett.) — This little flask was a travelling-flask, 
w r as it not, that the judge carried when he went away? A. — I think 
so. 

NATHAN EDSON. 

[Testimony taken in 1881.] 

Cross-Examination by Mr. King. 

Q.—You are one of the selectmen and assessors at Barnstable? 
A. —Yes, sir. 

Q . —And you know of a petition being presented by the adminis¬ 
trator of the estate of Nathan Crocker for abatement of a tax? A. 
— I do. 

Q . — That petition was presented, was it not, by the administrator 
in his capacity as such ? A. — I believe so. 

Q. — Whether or not you employed Judge Day to act as counsel 
for you in that matter? A. — We had no authority as selectmen. 

Q. — I asked you whether 3’ou employed him as counsel to act for 
}’ou? A. —We did, before the county commissioners. 

Q. — Haven’t you consulted with him since in relation to that 
matter? A. — I think not. 

Q. —Didn’t 3*011, a day or two before the town-meeting, have a con¬ 
ference with him on that same subject? A. — Not to my knowledge. 
I don’t know but I have talked the matter over frequently about the 
taxes. Quite frequently matters have been talked over, but nothing 
special in regard to the case. We talked it over as we would talk it 
with neighbors. 

Q .—And you got him to appear against the administrator in that 
case? A. — Yes, sir. 

Q. (By Mr. Burdett.) —How many times did he appear before 
the count}^ commissioners ? A. — Once. 

Q. — For what purpose did he appear? A. — To get the case 
postponed. They were not ready to have it tried. 

Q. —Was it postponed? A. — We were not ready for trial. We 
hadn’t witnesses there, and hadn’t got ready. 

Mr. King objected. 

The Chairman. Is that of any particular consequence ? 

Mr. Burdett. At the hearing before the county commissioners in 
which Judge Day appeared, the point he insisted upon was, that the 
case ought not to go forward until the town had been notified, and 
had had an opportunity to employ counsel. 


552 


HEARING —JOSEPH M. DAY. 


[March, 


Witness. Yes, sir. 

Q. (Bj 7 Mr. King.) —Were not questions interposed there by the 
petitioners, and did not.Judge Day interpose and state that counsel 
were there, and saj 7 he was there as counsel to look after the case? 
A. — I believe he did. 


TESTIMONY IN SUR-REBUTTAL FOR THE 

REMONSTRANTS. 

JOSEPH M. DAY. Recalled. 

Q. (By Mr. Thompson.)— Were the postmasters appointed by 
your nomination or recommendation? A. —I don’t know, sir, about 
that. I know the collector of the port has nothing to do with it, 
except that his name ma } 7 add one to a petition for a postmaster. 
Be 3 7 ond that I don’t know. 

Q. (By Mr. Wadleigh.)— At the time you say you paid this 
money to Nathan Crocker, did 3*011 not know him to be one of the 
wealthiest men in the county of Barnstable? A. — I did not, sir; 
and it never was known until after his death. He paid taxes upon 
about $6,000 or $7,000, and after his death it turned out that he was 
worth $60,000 or $70,000. 

Evidence closed. Hearing adjourned for arguments to Tuesday, 
April 4, at 9.30 o’clock. 


1882.] 


SENATE —No. 150. 


553 


FIFTEENTH HEARING. 


Green Room, State House, Boston, 
Tuesday, April 4,1882. 

The Committee resumed the hearing at ten o’clock, Senator Jen¬ 
nings presiding. The petitioners wished to put on in rebuttal a wit¬ 
ness to testify relative to Mr. David Bursley’s character for truth and 
veracity. 


FRANCIS D. COBB. Sworn. 

Q. (By Mr. Wadleigh.) —You are member of the House of Rep¬ 
resentatives from the town of Barnstable? A. —I am, sir. 

Q. —And how long have you known David Bursley? A. —I have 
known him a great number of years ; but intimately, perhaps, ten. 

Q . —You know what his reputation is for truth and veracity? A. 
— I know what I conceive it to be. 

Q. — What is it, good or bad? A. —I should say good. 

Cross-Examination. 

Q. (By Mr. Thompson.) — How long have } 7 ou lived in Barnstable? 
A. — Ten years. 

Q. —Never have entered much into public affairs there? A .— 
Very little. 

Q. —And are not very much around the stores and places of com¬ 
mon resort, are you? A. —I am not. 

Q. — And you have been quite intimate with Mr. Bursley? A. — 
Quite intimate : he was a neighbor of mine. 

[Mr. Wadleigh informed the Committee that he had received a com¬ 
munication from Mr. Louis L. Sellew, who said he desired to appear 
before the Committee to correct some statements made by Judge Day. 
The Chairman said he also had received a message from Mr. Sellew 
to the same effect. Mr. Sellew was then called forward and ques¬ 
tioned.] 

Q. (By the Chairman.) —Do you desire to testify, Mr. Sellew, in 
regard to the payment made by Judge Day, referred to in his testi¬ 
mony at the last meeting? A. —I wish to correct some of the state¬ 
ments, sir. 


554 


HEARING —JOSEPH M. DAY. 


[April, 


LOUIS L. SELLEW. Sworn. 

Mr. Sellew said, Mr. Chairman and gentlemen of the Committee, 
my attention has been called to some statements made by Judge Day, 
which I wish to correct. On p. 534 of the printed testimony it says, — 

“ Q. — How much did you pay him? A. — Mr. Sellew I paid $140 ” — 

I think there is a statement before that, however, where he said I 
asked or demanded $200 ; somewhere on p. 534, near the bottom. 
Here it says, — 

“ Q. —What kind of a demand did he make on you ? A. — He wanted $200 
also.” 

I wish to correct that, and say I never made any demand, request, 
or any thing else of Judge Day for an}' money whatever; and, in the 
next place, he never paid me $140, or any other sum. He did send 
to my address in Provincetown a letter enclosing $20. My wife 
states she sent me the letter. I presume I saw the letter, but I have 
no recollection of ever seeing it; and I did not return the money, and 
he requested it as a favor. 

Q. (By the Chairman.) —What as a favor? A. —That I should 
accept this as a favor,, and I suppose it was at the time of his going 
back on his promise. 

Q. — What promise? A. —He promised me the deputy-collector- 
ship in Provincetown in case he got the colleetorship at Barnstable. 

Q. —When was that? A. —In 1861. 

Q. —When did he have the talk with you? A. — Some time in the 
spring of 1861, the only time I ever had any talk with him. 

Q. — What was the talk you had with him ? Can you not state to 
us fully what it was at that time? A. —The talk was previous to 
his appointment. I went there, and asked for the position of deputy- 
collector of Provincetown in case he got the colleetorship at Barn¬ 
stable ; and he promised on his word and honor to have it. That 
was all. I stopped in his office a short time. 

Q. — Did you get it? A. —No, sir. 

Q. (By Mr. Crowley.) — You got the $20 dollars instead? A. — 
Not instead; but, if I had known of the class of men he speaks of, 
I should have returned it. 

Q. (By the Chairman.)— Did you do any work for him? A. — 
No, sir: he says [reading] they were “men that I never supposed 
would ask for it. If they could not get an office, if they could get 
$100 or $150, why, it was all right.” I was not of that class. I 
did not consider it in that light at that time. 

Q . — Did you ever ask him to pay you any money for expenses 
you had been to for the Republican party? A. —No, sir : never. 


1882.] 


SENATE — No. 150. 


555 


Q '• And he never paid you an} r ? A. —No, sir: I didn’t con¬ 

sider it paying. 

Q -—Eo we understand 3*011 to sa}^ that this twenty dollars was 
sent in a letter to your wife, or you? A .—To my address; but I 
wasn’t at home. 

Q • —Your wife handed you the letter? A. — No, sir : she sent it 
to me by mail. I have no doubt I had the letter. The matter has 
gone from my mind now. 

Q. (By Mr. Kingsbury.) —Was this in money or a cheek? A. 

— Money. 

Q. (B} r Mr. Thayer.) —You were not at home, you say? A. — 
No, sir. 

Q • — Your wife forwarded the letter, then, stating that she had 
received it? A. —No, sir. 

Q . — What did you write back? A .—That she had better keep 

it. 

Q. —Where were you at the time? A. —Charlestown. 

Q. — What State ? A. — Massachusetts —just across the river. 

Q .—When you went home you received the money? A .—I 
don’t know any thing about that. 

Q. — Have you seen that letter ? A. — I cannot tell. 

Q. —She says she sent you the letter? A. — I have no recollec¬ 
tion. She enclosed the letter to me. I haven’t got it how. 

Q. —Have you looked for that letter? A. —Yes, sir, but couldn’t 
find it. 

Q. — How long ago was that? A. — She thinks in the fall of 1861. 
Q. — Are you testif 3 T ing of her recollection or 3 'our own ? A. — 
Of hers in that respect. 

Q .—And hers as to the amount also? A. —Yes, sir: I never 
received any mone 3 r in an 3 r way or shape. 

Q. — You don’t know any thing except what your wife sa 3 r s? A. 

— Not of my own memory now. 

Q. (By the Chairman.) —About the letter? A. —Yes, sir, and 
the conversation I had with Judge Da 3 T , I know. 

Q. (B 3 t Mr. Thayer.) — Is your wife well? A. — She is not well, 
and she would be unable to come here before this Committee. 

Q. (By the Chairman.) —Where do you live, Mr. Sellew? A. 

— I live in Somerville. 

Q. — How long have you lived there ? A. — Twenty 3 T ears : I think 
I left down there in ’62 or ’63, I am not sure which. 

Q. (By Mr. Wadleigh.) —Mr. Sellew, from the time when you 
had made the application to Judge Day for the office, and he prom¬ 
ised it to you, did you have any conversation or talk with him until 
after he sent the letter? A.— I haven’t any recollection of having 


HEARING —JOSEPH M. DAY. 


556 


[April, 


any conversation with Judge Day but this once in my life, either 
before or after, and that was in the spring of 1861. 

Q .— Now, at that conversation was there anj r thing said about 
monejr at all? A. —No, sir. 

Q. —And did } T ou ever make any demand on him, or ask him for 
any sum of money whatever? A. —I never did. 

Cross-Examination. 

Q. (By Mr. Thompson.) —When was this matter first called to 
your attention since 1861 ? A. — A week ago last Friday, I guess. 

Q. — Who called your attention to it? A. — Mr. Higgins. 

Q .— What Mr. Higgins? A. —Jonathan, I think. 

Q. — Did he go over to see you ? A. — He called at my house. 

Q. —Now, sir, you haven’t any recollection, as I understand 3 ’ou, 
about the letter at all? A. —No, sir : I haven’t now. 

Q. —And hadn’t any recollection about the money, except as your 
wife knew? A. — I had a faint recollection, as I told him (Mr. 
Wadleigh), of twenty dollars being tendered me in some wa} T ; but I 
could not state how, where, nor when. 

Q .—When Judge Da} T told you he would appoint you deputy- 
collector, he didn’t say you would have to pay him a certain sum of 
money? A , — No, sir. 

Q. — There was no intimation of that kind? A. — No, sir: noth¬ 
ing of the kind. 

Q. (By Mr. Wadleigh.) —The talk you had, was that before he 
got the appointment? A. — Yes, sir, before it. It lay then between 
Mr. Day and Mr. Swift. 

Q. (By Mr. Bruce.) —Did 3 r ou sign this recommendation? A. 
— No, sir. 

Q. —You spoke of 3 T our wife’s being ill? A. —Yes, sir. 

Q. — Is her illness of such a character that she could not give an 
affidavit in this matter? A. — Oh, no, sir ! she could give an affida¬ 
vit, but she could not come up these stairs. She is not able to go 
out, or ver 3 ' seldom. 


JOSEPH M. DAY (the Respondent). Recalled. 

Mr. Thompson. We wish to ask Judge Da 3 T a few questions in 
regard to what the last witness has testified to: that is all. 

Q. — Judge Day, 3*011 heard Mr. Sellew’s statement here. State 
whether it changes your recollection or impression about the matter. 
A. — I don’t think that it does, sir. I onl 3 r desire to say, in my 
testimon 3 ^ in relation to Mr. Scllew, I testified from a strong: impres¬ 
sion on my mind in relation to a matter twenty-one years ago; that 


1882.] 


SENATE —No. 150. 


55T 


the impression still remains there ; that I have only associated Mr. 
Sellew with the payment of the amount of money that went into the 
town of Provincetown. I won’t swear positively that I paid $140 
to Mr. Sellew. I only know I have (when my attention was called 
to it, and in endeavoring to remember who I paid money to) associ¬ 
ated his name with the payment of mone}^ in Provincetown. 

Q. (By the Chairman.) —Is the same thing true of all the other 
men that you have sworn you paid money to? A. —No, sir: the 
matter of Nathan Crocker I am entirety positive about. 

Q. —He is dead, isn’t he? A. —Yes, sir. And the matter of 
the payment to Mr. Keith of Sandwich I am positive about. I would 
not say whether I put it into his hands or the hands of somebody else 
for him ; but I know money went for him. And in relation to a man 
by the name of Nickerson, living down the Cape, I am positive that 
mone}^ went there ; but I cannot state the amount, or the man’s first 
name. I desire, also, if the Committee please, to correct that part 
of my testimony, which will be found on the 586th page, near the top. 
Mr. Wadleigh asked, “ Did you make any changes before the first 
of July?” M} r answer was, “I should think not: I don’t know.” 
I wish to say, when that question was put to me, that I had the 
month of June, not July, in m} T mind. 

Q. (By Mr. Wadleigh.) —I suppose the quarter began the first 
of July? A. — Yes, sir ; but the officers were changed, if I recollect 
it, before the quarter began. I went in in the midst of the quarter: 
I didn’t wait for it to end. I desire, also, to correct my testimony in 
relation to the question put by Mr. Wadleigh, as to whether or not, 
at the time I paid Nathan Crocker $150, I didn’t know him to be a 
rich man. My answer was, at that time he paid taxes on six or 
seven thousand dollars ; and it was not till after his death it was 
learned that he was worth sixty or seventy thousand dollars. I de¬ 
sire to correct it, and say that at that time Mr. Nathan Crocker was 
not a rich man ; that it was the general understanding that his money 
was made during the war, and not as early as that. 

Q. (By Mr. Bruce.) — Is your recollection now, judge, of the 
payment of money to Mr. Sellew in harmony with his statement in 
regard to it? A. — Well, sir, I can only say that my impression of 
it — I have nobody associated in my mind with the payment of $140 
in Provincetown excepting Mr. Sellew. I cannot say I paid it to 
him, and I certainty should not doubt Mr. Sellew’s word: I have 
no occasion to. 

The following affidavit of Dr. John M. Smith was submitted to the 
Committee : — 


558 


HEARING —JOSEPH M. DAY. 


[April, 


AFFIDAVIT. 

I, John M. Smith of Barnstable in the county of Barnstable, hereby certify 
that I have been the family physician of David Bursley of said Barnstable for 
several years; that said Bursley is now sick with chronic bronchitis and valvu¬ 
lar disease of the heart; that the recent attempt to take the deposition of said 
Bursley in the proceedings for the removal of Judge Day was made without my 
knowledge and consent (had I been consulted, I should have advised against the 
same); that in my judgment he was not then in a condition to allow his depo¬ 
sition to be taken except with great danger to his life, is not now, and in my 
judgment will not be; and that any attempt to complete the taking of such 
deposition would be extremely dangerous to his life. 

JOHN M. SMITH, M.D. 

Barnstable, ss., March 28, 1882. 

Then personally appeared the said John M. Smith, and made oath that the 
foregoing certificate by him subscribed is true. 

Before me, 

H. B. HARRIMAN, 

Justice of the Peace. 

Q. (Ely Mr. Wadleigh.)—Y ou stated that Mr. Keith had no 
arms? A. — He has no arms, sir ; but wooden ones, I think. 

Q. — He has no natural arms? A. —No, sir. 

Q. — He lost his arms b}^ an accident? A. —I think it was at a 
Fourth of July celebration. His arms were blown oft’ by a cannon. 

Q .— What time was that? Wasn’t it about 1861? A. — I do 
not know. 

Q. —Wasn’t a purse made up for him by subscription? A. — I 
do not know. 

Q. —Didn’t you give this money to him on account of that acci¬ 
dent on the Fourth of July? A. — I don’t remember that I did. 

Q . — Do you remember that 3-011 did not? A. —No, sir: except 
generally. 

Q. — You don’t know any thing about the amount? A. — No, 
sir : I cannot tell about the amount. 

The Chairman. If there is nothing further, the evidence is closed. 

Q. (By Mr. Kingsbury.) — Is it clear in your mind that at that 
time you paid $140 which went to Provincetown ? A. — Yes, sir, I 
am clear in my mind as to that. Oh ! I will say in relation to that, as 
to every thing that lays so far back, that that is my strong impression ; 
but I cannot swear to paying $140 in Provincetown. I can onty 
swear that now, twenty-one years afterwards, that the impression is 
strong in my mind that it went to Provincetown ; and I have simply 
associated Mr. Sellew with that. 

Q. — Is that impression any stronger in your mind than it was that 
you paid it to Mr. Sellew? A. —Well, sir, I have no doubt what¬ 
ever that amount was paid. Mr. Sellew says he didn’t receive the 


1882.] 


SENATE —No. 150. 


559 


$i40, and I have no occasion to believe he would say what is not 
true: I have no doubt, sir, I might be corrected in relation to a great 
many things that took place twenty-one years ago ; but, until I am, I 
must retain my impressions. 

Q. (By Mr. Wadleigh.)— You don’t associate any other man 
with the payment of that money? A. —I do not, sir, now associate 
an} T other man. 

The Chairman. We are ready to proceed with the arguments, 
Mr. Thompson. 


ARGUMENT OF CHARLES P. THOMPSON. 

Mr. Chairman and Gentlemen of the Committee, — This pro¬ 
ceeding for the removal of the Hon. Joseph M. Day from the office 
of judge of probate and insolvency for the county of Barnstable, 
comes before the Committee upon a petition; presented to the Senate 
and House of Representatives, of Laban Baker, 2d, and seven others, 
asking for his removal, without any statement at all of any cause 
why he should be removed, and without any of the citizens of Barn¬ 
stable Count}’, except the eight, asking the present Legislature to 
proceed in the matter of address. The application is made to remove 
him under a clause in the Constitution of Massachusetts, Chap. III., 
Art. 1, which provides that,— 

“ The tenure that all commission officers shall by law have in their offices 
shall be expressed in their respective commissions. All judicial officers, duly 
appointed, commissioned, and sworn, shall hold their offices during good 
behavior, excepting such concerning whom there is different provision made 
in this Constitution: provided, nevertheless, the Governor, with consent of the 
Council, may remove them upon the address of both Houses of the Legisla¬ 
ture. ” 

It is under that provision of the Constitution that these proceed¬ 
ings are had. In reply to the petition of Laban Baker, 2d, and seven 
others, there are remonstrants from the citizens of Barnstable County 
to the number of more than seventeen hundred and fifty, comprised 
of the business men of the county to a very large extent, and 
people familiar with Judge Day as a judicial officer and as a citizen. 
So that the case starts with only eight petitioners, no one of whom 
has anv grievance, no one of whom has appeared before the Commit¬ 
tee to state any cause why he should be removed, no one of them 
claiming that in any matter he has ever been cognizant of any thing 
that was wrong on the part of that officer, or calling for censure on 
his part; and that is answered by a remonstrance of more than seven¬ 
teen hundred and fifty, being almost as many as the votes cast in the 


560 


HEARING — JOSEPH M. DAY. 


[April, 


county of Barnstable at the last election. I think the county at 
the last election cast less than twentv-one hundred votes. When the 
matter was brought before the Legislature, and referred to this Com¬ 
mittee, the counsel appearing here in behalf of the petitioners filed 
certain charges before the Committee, against Judge Day, of miscon¬ 
duct and mal-administration in office, and asked for a hearing upon 
those charges. The case was gotten up after the petition was pre¬ 
sented, and without any one of the petitioners — certainly so far as 
any thing appears here — having any personal knowledge of the truth 
of an} 7 one of the allegations ; and the case shows conclusively that 
the purpose to remove existed first, and after that the} 7 were looking 
around to see what causes might be found to aid them in that purpose. 

They charge, under the first allegation, fourteen distinct offences ; 
and the first is, — 

“That he has been in the practice and habit of improperly 

AND ILLEGALLY ACTING AS COUNSEL FOR AND ADVISING WITH EXECU¬ 
TORS, ADMINISTRATORS, AND GUARDIANS, AND OTHER PARTIES TO PRO¬ 
CEEDINGS IN THE PROBATE COURT FOR THE COUNTY OF BARNSTABLE, AND 
THAT HE WAS IMPROPERLY AND ILLEGALLY RETAINED AND EMPLOYED AS 
COUNSEL IN THE FOLLOWING CASES : TO WIT,” - 

Those I will not read ; but twelve were at first filed, and the thir¬ 
teenth and fourteenth have since been added.. 

The second is an allegation, I suppose, resting upon the preceding 
charge: with regard to the third, fourth, and fifth, those relate to 
substantially the same matter. Then, the sixth is in regard to intoxi¬ 
cation ; the seventh is to discourtesy and rudeness ; the eighth is 
regarding money received from Alice Crowell, now Alice Newcomb ; 
and the ninth is one in regard to federal relations. Now, departing 
a little from the order of the charges, I purpose, in the first place, to 
ask the attention of the Committee to the seventh allegation, which is 
as follows: — 

“That in 1871 he treated Mary C. Paddock at the probate 
court in Barnstable with discourtesy and rudeness ; and in 
1879 HE TREATED CLARISSA NlCKERSON, EXECUTRIX OF THE W T ILL OF 
Henry Nickerson, and a suitor in said court, with such harsh¬ 
ness AND RUDENESS THAT SHE FAINTED.” 

Now, in regard to these charges, the facts are as follows : Mary C. 
Paddock was desirous of having her sister committed by Judge Day 
to an insane asylum. She went to Judge Day’s office at Barnstable, 
with a certificate from two physicians, Drs. Gould and Lord ; and 
she supposed, and Dr. Gould also supposed, that she had what was 


1882.] 


SENATE —No. 150. 


561 


sufficient to justify Judge Day in making out a warrant for the com¬ 
mitment of Miss Paddock, the insane person, to an insane asylum. 
She went there with that paper, with the firm conviction that she 
was right; and she had reason to believe that she was right, because 
she was so informed, undoubtedly, by either Dr. Gould or Dr. Lord. 
She was there endeavoring to have Judge Day do an illegal act: that 
is what she was there for, although she was not then aware of it. 
She was there to demand of Judge Da} 7 a warrant to commit her 
sister to an insane asylum, that she might go off on a pleasure trip ; 
she was very anxious to make earl} 7 arrangements in regard to that 
trip, and was impatient. Judge Day did his duty there: he said to 
her, in substance, Your papers are not right. I cannot send your 
sister to an insane asylum on that evidence. The law doesn’t allow 
me to do it. And then she commenced her course of argument and 
her importunity ; and she said, in substance, I know the law. I have 
sat up nights reading the statutes ; and you don’t know any thing 
about it, judge. You had better take some lessons in regard to the 
law. If you had sat up nights, and read the statutes, as I have, you. 
would be familiar with the law. And Judge Day simply declined to 
grant the application. She says he said something in regard to the 
service of a writ, “ Bring her, and I will serve the writ; ” and that 
was said three times. Certainly, Judge Day could not have used any 
such expression as that, because a writ could not have been in his 
mind: it has no connection at all with proceedings of that kind. It 
is in regard to that matter and those words there that she bases this 
whole charge, and I submit that it is clear upon the evidence that she 
is mistaken about this matter. I do not want to speak disrespect¬ 
fully of the woman, because she cannot vote. If she could, she 
might be entitled to some different consideration. We treat her 
kindly, and simply say this with regard to her: that she was there to 
get an illegal act done, and that Judge Day refused to do it; and Dr. 
Gould tells what her manner was when she came back, and found she 
had been thwarted. Now, taking that evidence, it is clear that it was 
Judge Day who had cause of complaint, if any one. I should say, 
when the suitor undertook to dictate to Judge Day, and to tell him 
that he did not know his duty, that she had been sitting up nights, 
and knew the law, that Judge Day would be tolerated in answering 
her somewhat concisely, and with a little emphasis. There cannot 
be any doubt but that Judge Day treated her with all the consideration 
she was entitled to, and that she was without just cause of com¬ 
plaint. She was refused the application, and that is all. Dr. Gould 
S ay S , — and you saw him before the Committee, — one of those 
jolly, good-natured men, his face full of fun, — he says, he was mad 
all the way through, because his certificate was regarded as insufficient 


562 HEARING —JOSEPH M. DAY. [April, 

I 

authority for sending Miss Paddock to the insane asylum. He went to 
Taunton the next day, he says, and found that he was wrong, and 
Judge Day was right. Now, to say when the evidence shows that 
Judge Day was doing his duty, and faithfully executing the law, that 
he was harsh and rude, because he declined to do an illegal act, is 
wholly unjust. It is too easy under the law to-day to put a person into 
an insane as 3 ’lum, and the greatest care and caution are to be exer¬ 
cised ; and Judge Day is to be commended, and not condemned, for 
the course he took on that occasion. It would have been in the line 
of his own feelings to have granted this woman her petition, but it was 
a question of duty ; and he says, Although this lad}’ is desirous of 
having it done, and although she importunes me, and no harm may 
be done, I must obey the law: I cannot grant the application except 
upon due legal proceedings. And I put this down to Judge Day’s 
credit, and say again that he is to be commended for it. Instead of 
its being an}’ thing like malfeasance in office, it was performing a 
high and responsible duty fairly, honestly, and legally; and it shows 
clearly that he was not to be swerved from his duty by any importu¬ 
nities. 

I now come to the case of Clarissa Nickerson. The charge is, he 
treated her with such harshness and rudeness that she fainted. They 
brought this woman here for the purpose of influencing the Com¬ 
mittee against Judge Day, doubtless knowing her condition ; and 
nature rebelled against it. It does sometimes happen in the deal¬ 
ings of Providence, as in this case, that deception and fraud are 
opportunely exposed. The bringing of that woman here to sup¬ 
port this charge was doing something which they knew — or, if they 
did not know it, they ought to have known it — was unfair and un¬ 
just. Let us examine this charge, and see how it stands. Jona- 

- 

than Higgins, a man who has been here all the time during this 
investigation, and is here now, and has been working up this case, 
looking out for the witnesses and bringing them here, — he was with 
her when she was at the probate court; and, when Jonathan Higgins 
was not with her, her son was. Where is Jonathan Higgins, and 
where is the son? If Judge Day was guilty of any thing wrong, 
was guilty of any thing like rudeness or harshness, would they not 
have noticed it? They have the son, who would look upon any 
indignity to his mother as a most cruel act; and he would be here to 
testify to it if it had ever occurred. Jonathan Higgins is not 
particularly friendly to this party whom he undertakes to remove ; 
and he would be willing to testify to it, if there was any thing like 
rudeness or harshness on the part of Judge Day. It has not been 
my fortune to see a witness more kindly treated anywhere than she 
was treated here. I saw upon the countenances of the Committee 


1882.] 


SENATE —No. 150. 


563 


that the} 7 felt she was a woman of very feeble health, and her face 
indicated a want of mental vigor. The attorneys for the petitioners 
placed her in the most comfortable position that they could. The 
Committee, always kind, obliging, and considerate, upon this occa¬ 
sion seemed to be almost affectionate ; and that woman, treated with 
such a degree of kindness, fainted twice in the space of a few min¬ 
utes,— not so as to fall from her chair, but she fainted twice under 
that kind treatment; and there is no evidence produced to show that 
she fainted but once in the probate court; so that, if the harshness 
and rudeness is to be judged of by her fainting, there was double the 
harshness and rudeness here as there, the shock to her nerves was 
twice as great here as in the probate court; and you may well judge, 
I submit, not of the harshness, but of the kindness, of Judge Day 
from what you saw here. And her testimony is all the testimony in 
regard to rudeness towards her. The evidence of Mary C. Paddock 
and Clarissa Nickerson is all the testimony, except what comes 
in incidentally in the evidence of Judge Marston, who has not been 
at that court but very little for twelve years. He says that he 
has been in court when the judge seemed to be quite severe — and 
that of Jonathan Higgins, who made a remark substantially the same ; 
and Jonathan Higgins has been out of office eight years ; and neither 
one of them has any recollection of an} 7 time, or of any place, or of 
any occasion, where Judge Da} 7 did not conduct himself in a kind 
and conciliatory manner. And then we have proof here by witness 
upon witness, both men and women, testimony given last year and 
admitted as evidence this year, showing that Judge Day has been a 
man kind and conciliatory; and that has come from all parts of the 
county. It came from Charles F. Swift of Yarmouthport, from 
Joshua C. Howes of Dennis, both of whom had known him for 
from twenty to twenty-five years ; from George II. Snow of Har¬ 
wich, who had known him for twenty years ; from Silas F. Swift of 
West Yarmouth; from Ambrose N. Doane of Harwichport, and 
Simeon Atwood of Wellfleet, and Samuel H. Gould of Brewster, 
Warren Rogers of Chatham, Rev. W. S. Walker of Barnstable, 
Nathan D. Freeman of Provincelown, John D. Hilliard of the same 
place, Theodore F. Bassett of the village of Hyannis, Charles C. 
Burse of Cotuit (part of Barnstable), Frederick Parker of West 
Barnstable, Rev. Ralph P. E. Thacher now of Cambridge, Danforth 
S. Steele of Harwich, Watson D. Kelly of Harwichport, James S. 
Howe of East Dennis, Erastus Chase of Harwich, — all of them 
familiar with Judge Day, and familiar with the business of the court, 
having very often seen him and known him during his whole admin 
istration. And every one of them bears testimony to the uniform 
kindness and courtesy of the judge in his court. And then we have 


564 


HEARING — JOSEPH M. DAY. 


[April, 


a number of women who bear the same testimony as to his conduct 
to suitors in his court; namely, Lois B. Taber of Sandwich, Cor¬ 
nelia Bacon of Hyannis, Charlotte E. Taylor of Yarmouthport, 
Sarah T. Crowell of West Dennis, Lydia B. Dillingham of West 
Falmouth, Ruth B. Baker of South Dennis, and Elizabeth C. Norris 
of Barnstable,—she was during the last ten years in the office. 
Here is affirmative testimony. It does not rest on the presumption 
that the cases put in are the only cases where there is an} r ground of 
complaint; for we have positive proof here, going over the whole 
term of his official life. And all they bring iii against Judge Da}^ 
in this respect is Mar} r C. Paddock, provoked because she did not 
have an illegal request granted, and Clarissa Nickerson, who fainted 
here, — and she has had this infirmity for forty years, more than three 
times the years the woman had had the issue of blood, of whom we 
read in Scripture. No part of that forty years’ suffering from this 
terrible infirmity, by Clarissa Nickerson, is to be laid to the charge 
of Judge Da}\ If any thing is wanting to show the disposition of 
the petitioners in this case, that charge seven, in regard to Mary C. 
Paddock and Clarissa Nickerson, is enough to clearly show it. 

There is as much foundation for the allegation in reference to 
Clarissa Nickerson as for any part of the case, and there is no 
foundation for that. 

I will leave these matters, and now proceed to examine charges 
under the first allegation ; and I will go through with the specifica¬ 
tions under this charge as briefly as I am able to. They are cases 
■which must necessarily take a considerable length of time, and I will 
endeavor not to weary the Committee in presenting them, but will 
examine them as concisely as I am able to, having in view constantly 
the making of myself clearly understood in reference to each one of 
them. 

The first allegation is, — 

“ That he has been in the practice and habit of improperly 

AND ILLEGALLY ACTING AS COUNSEL FOR AND ADVISING WITH EX¬ 
ECUTORS, ADMINISTRATORS, AND GUARDIANS, AND OTHER PARTIES TO 
PROCEEDINGS IN THE PROBATE COURT FOR THE COUNTY OF BaRN- 
STABLE ; AND THAT HE WAS IMPROPERLY AND ILLEGALLY RETAINED 
AND EMPLOYED AS COUNSEL IN THE FOLLOWING INSTANCES : TO 
WIT,”- 

The first specification under this allegation is, “In 1858, in ref¬ 
erence to the will of Daniel Cummings.” The facts in regard 
to this case are these: Daniel Cummings of Orleans left a will 
which was probated Jan. 12, 1858, before Judge Day’s term of office 
commenced. His term of office began on the first day of July of that 


1882.] 


SENATE — No. 150. 


565 


year, and Joseph and George Cummings were appointed executors 
under that will. The executors did not go to Judge Day for advice 
at all. Joseph, one of the executors, and Calvin Cummings, who 
was a brother, went to Judge Day to consult him, not in relation 
to any thing appertaining to the duties of the executors, but simplj r 
with reference to the construction of a clause in a will, — a will not 
admitted to probate under Judge Da 3 r ’s order or decree, but by his 
predecessor in that office, Judge Marston. 

The witness, Daniel Cummings, testified, “There was a clause in 
my father’s will which caused dispute between the heirs ; ” not the ex¬ 
ecutors at all, but between the heirs is where the trouble was. The 
heirs did not construe it alike. u My brother-in-law had one idea, and 
some of us had another idea. It was respecting my father’s will.” 
He says, “I asked his opinion. My brother-in-law said he would 
agree to whatever the judge decided was right;” and he nowhere 
says he applied to him as an executor ; and they paid him five dollars, 
and this is the receipt. I call the attention of the Committee par¬ 
ticularly to it: — 

“ Dec. 4,1858. 

“ Joseph and Calvin Cummings to J. M. Day, Dr. 

“For legal advice to date, $5. 

“Received payment, 

“ J. M. DAY.” 

The Chairman. Is that printed in the report? 

Mr. Thompson. Yes, sir: on p. 242. And I want the Commit¬ 
tee to see that it is not a receipt to the executors at all, that it is a 
receipt to different persons, that Joseph and Calvin Cummings were 
not the executors, and that the whole question was between the heirs 
as to the construction of a clause in the will. The executors had 
nothing to do with it one way or the other in their capacity of execu¬ 
tors, and the petitioners must have known it when they made that 
allegation ; or, if they did not know it, they ought to have known 
it. They had no right to make such a charge. But it shows how 
this case is gotten up. They go for Judge Day’s removal, and then 
try to find evidence to justify it. An inquiry would have shown at 
once the nature of this transaction ; but they were willing to make 
charges against Judge Day whether well founded or not, — charges 
which a slight examination would have shown them to be clearly 
unfounded. No account was ever rendered in this case. 

I do not think it is necessary for me to say more about that charge, 
except to remark that it is about as well founded as is the fainting 
of Clarissa Nickerson, and no better. 

I will now call the attention of the Committee to the second speci¬ 
fication. “ In 1877, in the case of Noble P. Swift, an insolvent 

DEBTOR.” 


566 


HEARING — JOSEPH M. DAY. 


[April, 


Let me state briefly the facts in regard to this case. Emily Harri¬ 
son brought suit for a breach of promise against Noble P. Swift. 
The case was entered in the Superior Court for the county of Barn¬ 
stable, March term, 1865. It was twice tried, the jury disagreeing 
at the first trial. September term, 1866, a verdict of fifteen hundred 
dollars was rendered for the plaintiff, and the case was carried to the 
Supreme Court upon exceptions ; and on the twenty-fourth day of 
October, 1866, a rescript was received by the clerk of the courts at 
Barnstable, which is as follows : — 

“ Ordered, That the clerk in said court, in said county, make the following 
entry, under said case, in the docket of said court: viz., ‘ Exceptions overruled. 
Judgment to be entered on the verdict, as of the last September term of the 
Superior Court for said county of Barnstable.’ (1866.) 

“ By the court. 

“GEO. C. WILDE, Clerk” 

Dated Oct. 22, 1S66. 

So that this case stands with judgment for the plaintiff, entered 
September term, 1866 ; and that case was ended, so far as the defend¬ 
ant was concerned, on the 24th of October, 1866. All proceedings 
in court were closed except the issuing of an execution; and Judge 
Day’s connection with that case closed then, closed then forever. 

And he was no more counsel in that case than he is counsel in one 
decided before the Revolution. The distance of time is wholly im¬ 
material ; and because counsel for the plaintiff did not take advantage 
of their right in the matter, it is not to be charged to Judge Da}'. 
Did Noble P. Swift do any thing to prevent the plaintiff in that case 
recovering her judgment? The}'say they had an attachment which 
was good. Grant it: did Noble P. Swift interfere with that? Not at 
all. Did he make any concealment of his property? Did he put any 
thing away in order to place it beyond the reach of an execution ? 
Not a cent of it. His property was for nearly five months open 
for the plaintiff to levy her execution upon if she desired. There is 
no question about the law in this matter. The law is explicit. The 

statute provides how these proceedings shall be had ; and I refer the 

\ 

Committee to chap. 152 of the Public Statutes, sect. 18, in which it 
is provided as follows : — 

“ If an action is continued nisi from a term of either court, and is determined 
by the court before the next term in the same county, the judgment, by order 
of the court on the motion, or at the request of the party prevailing, may be 
entered as of the then last term of the court in the county where the action is 
pending. If the action is pending in the Superior Court, to await the decision 
of a question of law by the Supreme Judicial Court, the rescript may direct the 
clerk of the Superior Court to enter judgment as of the last term in that court.” 

Cases are not removed to the Supreme Judicial Court, but remain 


1882.] 


SENATE — No. 150. 


567 


in the Superior Court, though proceedings are had in the Supreme 
Judicial Court; and this section of the statute meets this case : — 

“If the action is pending in the Superior Court to await the decision of a 
question of law by the Supreme Judicial Court, the rescript may direct the 
clerk of the Superior Court to enter judgment as of the last term in that court.” 

That was done. It was perfectly legal. There was nothing out of 
the common and ordinary course of proceedings in any particular. 
It was in the regular course of business ; and sect. 19 provides, — 

“ The clerk in such case shall note on his docket the time of receiving such 
order; and, if the order is for final judgment in favor of the plaintiff, the secu¬ 
rity in the suit, whether hail or otherwise, shall be held for the Same time there¬ 
after that it would be held after the entry of judgment in the usual manner.” 

So that the property attached was held for thirty' days from the 
twenty-fourth day of October, 1866. The attachment was good up 
to the twenty-fourth day of November of that year; and then the 
attachment was dissolved, not by any action of Noble P. Swift, but 
by operation of law ; and any attempt to impute an} 7 thing unfair to 
Judge Day, or to Mr. Swift himself, is without any justification in 
reason or in fact. 

Noble P. Swift in March 24, 1867, makes application for the bene¬ 
fit of the insolvent laws of this Commonwealth. On the twenty-first 
da} 7 of March, about four months after this attachment had been dis¬ 
solved by operation of law, and about five months after the property 
of Noble P. Swift, whatever lie had, was open to seizure upon an exe¬ 
cution, in that case, and she might have obtained full satisfaction upon 
it, there was not any thing done, on the part of Noble P. Swift, in 
any way to thwart or interfere with her obtaining full satisfaction of 
her judgment. In fact, Mr. Swift was not aware of his insolvency. 
He says the matter had not been considered or contemplated by him. 
Mr. Swift-employed counsel in Boston. He employed F. W. Sawyer 
as his attorney, a man well known in the profession here at that time, 
an able, honest, and upright attorney, and one who had some apprecia¬ 
tion of his own services, as we learn from Mr. Swift, by the fee that 
he charged. He had no other counsel. Upon what testimony do they 
undertake here to impugn the action of Judge Day? They say there 
were some notes that had the appearance of being made at the same 
time, although bearing different dates. I have yet to learn that that 
is a very unusual thing, in the first place ; I think, that when there 
is a settlement, — an amount agreed upon, and different notes are 
given, to have the notes bear different dates, as well as made pay¬ 
able at different dates. Be that as it may. There was not a sug¬ 
gestion that the consideration of those notes was not good. Some- 
thing in judicial proceedings is to be assumed ; and where there 


568 


HEARING — JOSEPH M. DAY. 


[April, 


is no question made as to the regularity of judicial proceedings, 
when the action of another court is to be reviewed, every thing will 
be presumed to have been done necessary to establish the validity of 
its action. And the honorable counsel in that case, so far as any 
thing is shown here, never suggested for a moment that the consider¬ 
ation of these notes was not just what it purported to be; and, if 
there had been any question about that, they undoubtedly would 
have shown it. They w'ould have claimed an appeal if the}’’ had 
any confidence in their objections against those notes. Talk about 
their client not having any money! She had a claim of fifteen 
hundred dollars, beside taxable costs, — sixteen or seventeen hun¬ 
dred dollars; and this estate paid a large dividend, some forty or 
fifty per cent: and she must have received out of this estate some 
seven hundred dollars. It cannot be the poverty of the client so 
much as the poverty of the facts which accounts for the not taking 
of an appeal; and I submit there was nothing in the action of 
Judge Day but what was perfectly honorable. They took exception 
to Judge Day’s sitting in the case. He would have been open to 
censure if he had not sat in it. He held no relations to this party 
that would excuse him. To be sure, he had been the attorney of this 
part}'. But is a judge never to try a case where one of the suitors 
has ever been his client? Is that the law? Is that the standard to 
be established? It is not so taken and understood. That is not the 
law. No one ever heard of such a rule being applied to the action of 
a court. The claim was not of the judge against Mr. Swift. It was 
on the part of Emily Harrison. It was a judgment-debt, the proof of 
which could not depend in any manner upon the discretion of Judge 
Day. It was a judgment entered by an order of the Supreme Judicial 
Court, a matter in which Judge Day was relieved from all responsi¬ 
bility with regard to; and I say again, that, if he had not acted in 
that case, he would have been unfaithful in his duty. It came before 
him in the regular course of proceedings ; and there was nothing in 
the facts, as proven here, which as a matter of law, or as a matter 
of fact, ought in any way to have prevented his acting. There is 
nothing in the length of time which can be material. Are not four 
or five months as good as four or five years? And in this case do 
they show any thing to prove that Judge Day was acting partially 
toward Mr. Swift? No, sir. He appointed Ebenezer Bacon as one 
of the assignees, — a man of such a character for integrity and capacity 
that Gov. Andrew regarded him as a suitable person for the office of 
judge of probate and insolvency; and Judge Day did every thing, 
under those circumstances, that an impartial and upright judge 
could do. The objection made to his acting was on account of 
chronic dislike, which is so often the mother of malice. It is 


1882.] 


SENATE —No. 150. 


569 


clear that this objection made then, and to his acting in another 
case, — as I shall have occasion to refer to, — shows the state of feel¬ 
ing on the part of the parties who objected, but does not in any manner 
reflect upon the conduct of Judge Day. He was asked if he did not 
receive his pay for services in this case. He did receive it; but it 
was upon the testimony of Mr. Swift, soon after the rescript was sent 
down to the Superior Court. Mr. Swift sa} T s he never had a word with 
Judge Da} 7 about insolvency proceedings as a means of avoiding the 
Harrison judgment: there was no suggestion about his instituting 
insolvency proceedings, or any thing of the kind. He never had a 
word with him until he filed that petition ; and he cannot tell when he 
ascertained he was insolvent, — and certainly he had not suggested 
it to Judge Day. The.action of Judge Day in this case is perfectly 
honorable, upright, and judicial; and an attempt to impugn it shows 
the poverty — the poverty, I say — of the materials which they have 
been able to obtain. I think 1 have gone over that allegation with 
as much of detail as I ought, and I will only add that no appeal 
was taken to his discharge. No objection whatever was made to 
it. And all the proceedings in the case were regular, and without 
the least ground for complaint. 

[Mr. Thompson paused at this point, and the Committee adjourned 
until 5 p.m., same day.] 


570 


HEARING —JOSEPH M. DAY. 


[April, 


SIXTEENTH HEARING. 

Green Room, State House, Boston, 
Tuesday, April 4, 1882. 

The Committee met at 5 o’clock p.m., Senator Jennings presid¬ 
ing. The Hon. Charles P. Thompson, of counsel for the remon¬ 
strants, continued his argument. He said, — 

Mr. Chairman and Gentlemen, — I had just finished, at the ad¬ 
journment, what I proposed to say in relation to the second specifica¬ 
tion ; and I will now proceed directly to a consideration of the third, 
which is as follows : “In 1873, for Eleazer Nickerson, administra¬ 
tor of Seth T. Nickerson.” The facts are these : On the nineteenth 
day of November, 1872, Eleazer Nickerson was appointed adminis¬ 
trator of the estate of Seth Nickerson. On the 4th of March, 1873, a 
libel in admiralty was filed against the schooner “Benjamin Eng¬ 
lish,” to recover a seaman’s wages. The whole schooner was the 
property of Seth T. Nickerson at the time of his decease. The libel 
w r as brought by George A. King and II. P. Harriman, attorneys for 
the seaman, and was defended by Judge Day, who appeared in behalf 
of the claimant of the schooner, who was Eleazer Nickerson the ad¬ 
ministrator. Now, it is claimed, that in this case Jud 2 ;e Dav violated 
a statute of the Commonwealth, which provides that a judge of pro¬ 
bate “shall not appear as counsel in or out of court in any suit 
brought by or against an executor, administrator, or guardian, as 
such.” In answer to that charge, I have to say that it was not a 
suit brought against the administrator as such in any legal sense; 
and it is the legal question which we are here to try. If Judge Day 
is to be tried, he is to be tried under the law ; and he is not, certain^’, 
to be tried under the law and then convicted aoainst the law. I 

o 

think the apostle Paul complained of such treatment when he said to 
Ananias, “ Sittest thou to judge me after the law, and commandest 
me to be smitten contrary to the law? ” If Judge Day has violated 
no law of this Commonwealth, I do not know why he should be held 
to answer. He is an attorney-at-law; and the statute, b} T enumerat¬ 
ing those cases in which he cannot appear, specifies as clearly and 
emphatically as it can be specified, that he has a right to appear in 
all other cases: for it is a familiar principle, that, when you specify, 
you exclude all others, — and the prohibition is, that he “shall not 
appear as counsel in or out of court in any suit brought by or against 
an executor, administrator, or guardian, as such.” This is a proceed- 


1882.] 


SENATE —No. 150. 


5T1 


ing in rem , brought, not against the administrator, but against the 
schooner; and the law of the Commonwealth says that he may ap¬ 
pear. That is the provision of law; and it could not be put more 
forcibl } 7 or clearly if it were put in capitals upon the statute-book, 
that he may appear in a proceeding in rem , although the property 
may belong to the estate of an intestate. If there is a provision of 
the law so plain and explicit as that, it seems as if Judge Day ought 
not to be adjudged guilty of malfeasance in office, because he has 
complied with the law, and done that which he had a right to do. 

But it ma } 7 be said, that it is substantially an appearance for the 
administrator in a suit brought by or against him as such. Such is 
not the case. The law of the Commonwealth provides that no suit 
shall be brought against an administrator or an executor within one 
year from the time of his appointment, unless it is a case which will 
not be affected by insolvency proceedings. Tested by that law, this 
action could not have been brought against the administrator; and, 
b } 7 the application of that statute, it appears clearly and conclusivel } 7 
that this is not one of those cases. It could not be brought in the 
United States Court against an administrator more than in a State 
court. The same law appertains to both,—to the State and the 
United States Courts. You cannot bring a suit against an adminis¬ 
trator, as such, in the courts of the United States any more than you 
can in the courts of the State within a 3 'ear from the time of his ap¬ 
pointment. I submit it is certain, that it was not an action brought 
against the administrator as such, because such an action would not 
lie. I know that objection was made at the time to Judge Day’s 
appearing as counsel for the claimant; but I am at a loss to see what 
disposition counsel have who desire to circumscribe a probate judge 
in his practice, with a salary so limited as that Judge Day receives. 
Attorneys among whom I have been accustomed to practise would 
rejoice to have the judge have an opportunity to aid his inadequate 
salary; and they would be almost tempted to give him his case were 
they opposed to him, as a matter of encouragement. But it seems 
that in Barnstable County they do not want their judge to practise at 
all if they can prevent it. Mr. Harriman, who is counsel at one time, 
witness at another time, and all the time an expectant for this office of 
judge of probate, if he can succeed in getting Judge Day removed, is 
one of the parties who comes here and says that Judge Lowell inti¬ 
mated to Judge Day that he had not a right to appear. Judge Lowell 
says it is no such thing. He says he did not undertake to express any 
opinion with regard to the matter one way or the other. That only 
shows the fairness [ironically], I will not say of the counsel, but of 
the wdtness. 

This is the whole of this case upon the law. But supposing that 



572 


HEARING —JOSEPH M. DAY. 


[April, 


Judge Day erred in his judgment, supposing that some law 3 "ers 
learned in the law are of opinion that he ought not to have appeared, 
while others equally learned in the law are of opinion that he could 
legally and fairly appear? and if one class of men think one way, 
and another class of men think the other way, as to the propriety of 
his appearing as counsel in the case, is Judge Day to be removed be¬ 
cause he erred in judgment? Counsel said here, the other day, that 
he was presumed to know the law, and that the matter of his intention 
ought not to be taken into consideration. I think a rule of that kind 
applied to the judges of any of our courts would be somewhat severe. 
If a judge is to be taken to be guilty of misconduct and mal-adminis- 
tration in office every time he rules wrong, it would not take long to 
get up a cause for removal against the most learned and upright judges. 
Look through the reports, and you will find the ablest judges veiy 
often make mistakes ; and Judge Day does not claim at all that he is 
infallible. He does not claim to be guided b}" inspiration; but he 
does claim to be this,—-an honest, upright, faithful, true man, trying 
to perform his duty as best he can in the position he holds as judge. 
And he is to be judged liberally and not severely where it is only a 
matter of judgment. I will not take up- the time of the Committee 
longer upon this specification, but will proceed to the next charge or 
specification in order. 

“Fourth, in 1873, in proceedings for partition in which Reu¬ 
ben Young and Enos R. Young were parties.” 

The facts under this allegation are substantially these: a petition 
was filed in the probate court for the county of Barnstable by Reuben 
Young, asking for the partition of real estate under a recent statute 
of the Commonwealth, giving the probate courts jurisdiction in 
certain cases of petitions for partition of real estate. I think the 
statute was passed in the } T ear 1869. After the petition was filed, 
and notice served. Judge Day declined to take jurisdiction of the case 
for this reason,—-that the title to the real estate sought to be divided 
was brought in question, there was a dispute as to the shares or pro¬ 
portions of the parties. The probate court has no authority to act 
in a case when the shares or proportions of the parties are in dispute, 
or where the}" appear uncertain. If Judge Day received information 
which was satisfactoty to him, that the title to real estate was in 
question, and the shares of the parties were uncertain, then, certainty, 
he had no jurisdiction, and ought not to have acted further than to 
dismiss the petition. The statute, with regard to this matter, is very 
plain; and I refer the Committee to chap. 178 of the Public Statutes, 
sect. 45. This does not vary materially from the law as it stood 
before; and, therefore, for convenience, I read from the Public 


1882.] 


SENATE —No. 150. 


573 


Statutes: “Probate courts shall have concurrent jurisdiction with 
the Supreme Judicial Court and Superior Court of petitions for parti¬ 
tion of lands held by joint tenants, coparceners, or tenants in common, 
in cases where the shares or proportions do not appear to be in dis¬ 
pute or uncertain ; ” and then there is another provision made in the 
law, which was not in the law when Judge Day dismissed that peti¬ 
tion, providing, that, where the title to real estate appears to be 
brought in question, the case may be certified up by the judge of the 
probate court to the Superior Court. But, as I have said, that law 
was passed subsequent to the dismissal of that petition by Judge 
Day, so that Judge Day had no course left him at that time but to 
dismiss the petition. I will read a part of sect. 46 of the same 
statute: “ When it appears by adverse claim, or otherwise, 1o the 
probate court in which such petition is filed, that the shares are in 
dispute or uncertain, the court may order the case to be removed to 
the Superior Court; and it shall be so removed at the request of any 
part} 7 in interest.” But, as I have said before, that was not the law 
with regard to the removal of a case to the Superior Court then ; and 
there was nothing for Judge Day to do, when it became clear, when 
he received information that he regarded as reliable, that the shares 
were uncertain, but for him to say, as he did, to Mr. Hutchinson, 
who was the attorney there for the petitioners, “ I have received 
information that the shares are in dispute, and I cannot act.” Was 
he right in that? Because, if Judge Day is right in this matter, 
certainly it cannot be claimed that he was acting from an} 7 wrong 
motive. If people do right, that is about as much as is expected of 
them ; and, when they do right, it is hardly necessary to inquire too 
carefully into their motives. But in this case both the act and the 
motive were in harmony: they were both right. And how does that 
appear? Let me call attention to the matter of title: this is the 
testimony given by Mr. B. F. Hutchinson himself, and he shows 
clearly and conclusively that there was a question in dispute in refer¬ 
ence to the title. 

“ Q — Did you say there was no contest as to the title of that property ? A. 
— No, sir: no contest about the land. There was a contest about the houses 
which Mr. Reuben Young had built upon the land. There was a division about 
that. I don’t think there was any question between the judge and myself as to 
the legal point.” 

He didn’t seem to take the point at all that houses are real estate. 
Houses built upon the land are a part of the land ; and, when there 
was a question about that matter, there was a vital question as to the 
shares and the proportions of the parties, and a case where the law 
prohibited him from acting as judge. He had no jurisdiction. The 
minute that fact appeared, his jurisdiction ended ; and I say that the 


574 


HEARING —JOSEPH M. DAY. 


[April, 


judge, being satisfied that such was the fact, acted wisely. We all 
know how business is done in probate courts. The proceedings are 
quite informal. It is not long since, as we learn in that county, they 
used to send by letter, and get their letters of administration and 
letters testamentary, no petitions being filed ; and there isn’t any 
regular system of pleading now adopted by the probate courts. And 
Judge Day, like all judges of probate in this Commonwealth, I sup¬ 
pose, when he receives information, makes up his mind as to whether 
it is reliable or not, and if it is reliable he acts upon it, and does not 
wait for any formal plea. Who ever heard of any formal pleadings 
in a probate court in a proceeding of this kind? Then, the next 
question is, — 

“ Q. —There was a contest as to the houses on the property ? A. — Yes, sir: 
there was a contest as to the houses on the property; but the question had not 
arisen at the time of the division, — at the time of the petition. At the time of 
the petition the question of title to the houses had not arisen.” 

And now notice the next question and answer. 

“ Q.—There was a question of title settled finally? A. — Yes, sir, to the 
houses. 

“ Q. —There was a question of title settled ? A. —The house was built by 
a party; and it was agreed that he should build a house on the land, and have a 
certain portion of it, and have a quit-claim deed. After the houses were built, I 
presented a quit-claim to them to sign; and they refused to sign it unless Reuben 
Young would agree to give them his property after he was dead.” 

And that is the question which the judge of probate is expected to 
try under the law, is it? There cannot be a possibility of a doubt 
but what Judge Da} 7 acted wisely: there cannot be a possibility of a 
doubt but what this was a case where he had no jurisdiction ; and, if 
he had taken jurisdiction in that case, the learned counsel for the peti¬ 
tioners might have had some reason to have moved -for his removal 
on that ground. For Judge Day to have acted in a case of this kind, 
where such facts as these appeared, would have been a breach of 
official duty. He had no jurisdiction ; and if he had assumed it, and 
undertaken to act, that would certainly have been some evidence in 
the direction which the counsel for the petitioners are so anxious to 
run. I submit, that, upon the statement of the facts as they are given 
in the testimony, Judge Day acted rightly, and to have acted in any 
other way would have been to have acted unlawfully. 

But it may be said, he afterwards went into the Superior Court, and 
acted as counsel for one of these parties. Supposing he did ! He 
had a right so to do. There was no question in which he, as judge 
of probate, was in any manner concerned. The petition for partition 
in the Superior Court did not in any manner depend upon or relate to 
any sentence, decision, warrant, order, or decree passed by him ; and 


1882.] 


SENATE —No. 150. 


575 


he had just as much right to act as if a petition had never been filed 
in the probate court. Will the learned counsel say that he dismissed 
this petition for the purpose of getting a case? To do it, I submit, 
would be doing something which is wholly without any foundation; 
and, if such a claim was made by counsel, it w r as unfounded and 
apparently malicious. Why should not Judge Day act for the par¬ 
ties? Why had he not a right to be counsel? It was a question in 
regard to real estate, and he had just the same right to act as he 
would have had if it had not been in his own county. It is not 
claimed here that it was a violation of the prohibition against acting 
as counsel in a case brought by or against an administrator as such, 
and I don’t know really what claim is made. I have undertaken to 
conjecture ; and I say, that, if it is a claim that he wrongfully dis¬ 
missed the petition, it is a claim without an}’ foundation. The claim 
that he acted illegally by being counsel in the Superior Court is 
equally without foundation. The fact that Judge Day appeared in 
the Superior Court subsequently can have no effect upon his action 
in the probate court. 

I suppose that there is some reason for putting in this charge, but 
I must confess that I fail to see it. Because, if he did not dismiss 
the one unlawfully and illegally, then he had a right to appear and 
act in the other; and if he did dismiss it illegally, then the fact that 
he acted in the second would not change the character of that act in 
any particular. In both cases I say that he acted lawfully ; and there 
is not the slightest cause of complaint, either in law or fact. 

Fifth Allegation. — “ In 1875-76, in the case of Samuel Pitcher, 

ADMINISTRATOR OF THE ESTATE OF EDWARD J. CaRROLL.” 

In relation to that I certainly have not heard any evidence ; and I 
understand that that is waived, that there is no claim made under 
the fifth allegation. 

Sixth Allegation. — “ In 1876, in reference to the will of Jona¬ 
than Kelly.” 

Jonathan Kelly of Yarmouth, in the county of Barnstable, died ; 
and his wife Elizabeth was appointed executrix of his will in 1858 
by Judge Marston. The will was probated before Judge Day com¬ 
menced his term of office. David Aiken, not executor nor adminis¬ 
trator, not holding any official position in relation to any of the 
parties connected with this estate, went to Judge Day and asked him 
for advice as to the construction of a will, and that will pro\ed some 
eighteen years before by his predecessor in office, and after the death 
of Elizabeth, the wife of Jonathan Kelly and the executiix of his 
will. To be sure, afterwards David Aiken was appointed adminis- 


576 


HEARING —JOSEPH M. DAY. 


[April, 


trator de bonis non , with the will annexed, of the estate of Jonathan 
Kelly, and was also appointed administrator of the estate of Eliza¬ 
beth Kelly. He was appointed administrator of both estates at the 
same time and under the date of April 16, 1876. The advice which 
David Aiken received of Judge Da} 7 , and for which he paid him, 
was on'the 15th of March, 1876, a month before he was appointed 
administrator of either of the estates. The subject-matter of the 
consultation is clearly shown by the opinion which Judge Day gave 
at the time. It was in writing, and under the date of March 15, 
1876 ; and it is so brief I will read it. 

David Aiken, Esq. 

Dear Sir ,—Upon examination of the authorities in connection with the will 
of Jonathan Kelly, I am of the opinion that the rights of the several parties 
in interest are as follows: Elizabeth, widow of Jonathan Kelly, had an abso¬ 
lute fee in all the estate, real and personal, of Jonathan Kelly. Of course, 
then, she was entitled to have the income of her own property. It also follows 
that the whole estate, including all accumulations, is now the property of the 
only daughter of Elizabeth Kelly. The children of Susanna take nothing 
under the will of Jonathan Kelly. 

Your obedient servant, 

J. M. DAY. 

Mr. Aiken says for that advice he paid ten dollars. I have not 
heard its accuracy questioned ; and, if its accuracy is not questioned, 
the price certainly was very moderate. And it was not, I say again, 
advice given to an executor or an administrator. Hadn’t David 
Aiken the right to go and consult Judge Day with regard to a will 
proved by his predecessor eighteen years before? Certainly that will 
did not depend upon any sentence, decision, warrant, order, or 
decree made or passed by Judge Day. That was a w r ill that he had 
a right under the law, I think, in any construction that may be given 
to it, to examine and give an opinion in reference to. Where is the 
cause of complaint? What crime did Judge Day commit, when a 
man in the county asked him with regard to a will proved by his 
predecessor eighteen years before, and he gave him an opinion for a 
moderate sum, and gave it correctly? Where is the crime? If there 
was any crime, it was at that time ; and, if there was any cause for the 
removal of Judge Day, it was then, on that fifteenth day of March, 
1876, —for that is the time at which the act is to be measured and 
considered. The fact that Mr. Aiken was appointed afterwards 
administrator of the estate cannot affect in any manner the validity 
of Judge Day’s action then. The moral and legal character of that 
act was fixed before any administration was had ; and it shows the 
poverty of the material of the petitioners, it shows the way this case 
is gotten up, — charges made first, and then a fishing around the pro- 


1882.] 


SENATE —No. 150. 


577 


bate office to see if an account cannot be found where Judge Day’s 
name comes in, and then summoning witnesses at a venture. 

The Chairman. The kernel of the thing, as it strikes me, Mr. 
Thompson, is not the fact that he gave him advice before he was 
appointed administrator, but that the money that he paid Judge Day 
for that advice was afterwards put in his administration account, and 
allowed by the judge. That is the kernel of the thing. 

Mr. Thompson. Yes, sir ; and to that I was going to address my¬ 
self particular^. And 1 am glad the Chairman has called my atten¬ 
tion to it; for I will now treat it a little more fully than I otherwise 
should. And I say this, that that kernel is not a grain of a noxious 
nature or character. It is the finest of wheat. There is nothing 
purer, nor can there be, than that very kernel. When this estate of 
Elizabeth Kelly was settled, there was but one part}’ in interest; 
and that party was the daughter of Elizabeth Kelly. David Aiken 
undoubtedly said to her, “ The advice that I received from Judge 
Day was substantially for your benefit: you got the full benefit of 
that, and it is nothing more than just and right that you should 
pay me what I paid for it.” And, if she saw fit to, who is there to 
complain ? This account was rendered with the consent of the daugh¬ 
ter : it was her payment; and whether paid in the account, or paid 
before any account was made, or paid the day after the advice was 
received, it is wholly immaterial. The fact of its being in the account 
has no significance at all, because it was put there by the consent of 
the daughter; and, when she consented, there w r as no one who had 
any cause of complaint. Why, if the judge is to be held responsible 
for items in a probate account, where all parties in interest consent, 
it would be a singular doctrine. A singular doctrine if the judge of 
probate is to be held responsible for the items that are put into 
accounts by agreement of the parties, by adjustment and compro¬ 
mise and the various other ways in which they are put in, with which 
the judge has nothing to do where it is done by the consent of all 
parties in interest. 

In his testimony Judge Day explains that matter fully, and tells 
you that it was in the way I have suggested, and that practically he 
had nothing to do with it at all. He said to Mr: Aiken at the time, 
_and I call your attention particularly to it, — “ Mr. Aiken, as be¬ 
tween you and she you may put your accounts in such shape as you 
and she agree to ; but my name must not appear there as giving advice 
to an administrator, for I have given none to an administrator.” He 
objected to having it go in that way ; and so it was erased, and made 
to stand as a payment by her. Judge Day said, “I have given no 
advice to an administrator.” He says, Let Mr. Aiken and this woman 
fix their accounts as they please between themselves : it is “ only this 


578 


HEARING —JOSEPH M. DAY. 


[April, 


and nothing more.” The daughter agreed to pa}’. I hope the Com¬ 
mittee will not forget that it was not a charge made by Judge Day. 
It was a charge made by Aiken for money which he paid, and which 
he claimed to the daughter was for the benefit of the estate, which 
she assented to ; and it was paid with her consent. The fact that it 
was in the account has no bearing upon the character of the charge. 
If it had been paid, and not included in the account, it would have 
been just the same as it is now. This daughter was the only one in 
interest; and, because the daughter agreed to pay ten dollars paid by 
Mr. Aiken for advice to Judge Day, is Judge Da}’ going to be removed 
for it? What wrong, I ask, has Judge Day committed when the 
daughter of Elizabeth Kelly says to Mr. David Aiken, “ Take the 
ten dollars that you paid Judge Day for the advice : I will pay it ” ? 
If Judge Day is to be charged as a criminal for doing that, it is 
imputing iniquity where no iniquity exists. It w r as a perfectly hon¬ 
orable, straightforward act on the part of David Aiken, it was an 
honorable and straightforward act on the part of the daughter of 
Elizabeth Kelly, it was an honorable and straightforward act on the 
part of Judge Day ; and the man who sees any thing wrong in it after 
it is correctly explained takes a singular view of human actions. I 
am not aware of any standard of morals by which this transaction can 
be tested and Judge Day found in any manner of fault. It appears 
to be a malicious charge. If the petitioners who brought this charge 
here knew the facts, they were actuated by malice ; and, if they did 
not know the facts, it is little less. They haven’t a right to attack 
men by such methods as these, to undertake to convict them of 
crime where every thing is as pure and as legal as it is possible for 
acts to be. I will say no more upon this allegation, and will now 
proceed to consider the next charge, which is the — 

A 

Seventh Allegation. — “In 1877, in the case of Ambrose N. 
Doane, administrator of tiie estate of Joseph C. Lawrence.” 

The facts are as follows: Ambrose N. Doane was appointed admin¬ 
istrator of the estate of Joseph C. Lawrence, Aug. 3, 1827. The 
receipt put in evidence here is for a bill against the intestate for ser¬ 
vices rendered the intestate in his lifetime, and for less than a hundred 
dollars; and therefore Judge Day was called upon to act as judge 
m that case. I call the attention of the Committee to the statute 
in relation to this matter. It is chap. 158 of the Public Statutes, 
sect. 4 : — 

“If a judge is a party or directly interested to the amount of a hundred dol¬ 
lars, exclusive of interest, in a case arising in liis county, and such interest 
appears of record in the case; or if he is absent or unable to perform his duties, 
and no judge acts for him under tjie provisions of the preceding section; or jf 


1882.] 


SENATE —No. 150. 


579 


there is a vacancy in the office in any county, —the duties shall be performed in 
the same county by the judge of any other county designated by the register 
from time to time as necessity or convenience may require.” 

Now, Judge Day was called upon to act in this case. If he had said, 
u I will not act, because I have a bill of twenty-five dollars against 
the estate,” it would have been a violation of duty. He was called 
upon to act. That statute defines what amount of interest shall dis¬ 
qualify him ; it defines with the same clearness what amount of inter¬ 
est shall not disqualify' him. If he has a claim of only one hundred 
dollars against the estate, he is declared by' law to be u as free, im¬ 
partial, and independent as the lot of humanity will admit,” so far 
as pecuniary 7 interest is concerned. 

The receipt itself shows clearly 7 and conclusively that the bill was 
a bill, not against the administrator for any 7 services rendered him, 
but was a bill against the estate of Joseph C. Lawrence. How can 
there possibly be any claim that it was a bill against the administrator 
for services rendered him ? 

Judge Day 7 say’s that it was not, and Ambrose N. Doane certainly 
does not intimate that it was any thing of the kind. Judge Day says 
he was paid the sum of twenty'-five dollars, and gives the facts in 
relation to the payment. This is the statement made by Judge Day 7 , 
and it is uncontradicted : — 

“ Q. —And for what was that twenty-five dollars charged ? A. —For this. 
Some time before Mr. Lawrence’s death he and his wife had difficulties. She 
had been off living with another man, and he refused to support her. Proceed¬ 
ings were brought before the Supreme Court to compel him to support her, and 
to refrain from molesting her in any way. These proceedings extended over 
several months. A suit was brought, also, against him to recover the price of 
some provisions which had been furnished to his wife. This matter I had in 
charge. When Joseph C. Lawrence died, he owed me a balance of about forty 
dollars for services in the controversy between him and his wife; he also owed 
me for services in the other matter, — in the suit against him for provisions. 
If he had lived, I should have received the whole of my bill. He died, leaving 
four or five children. I took twenty-five dollars from Mr. Ambrose N. Doane 
in full for all demands.” 

This is the whole of it; and the receipt shows it clearly and con¬ 
clusively, corroborating the statement of Judge Day. The item put 
into the account is, “ Paid J. M. Day, Esq., for legal advice to ac¬ 
count of J. C. L.” [J. C. Lawrence], “ twenty-five dollars,” showing 
conclusively that it was a matter against Joseph C. Lawrence. 

Well, hadn’t he a right to make such a charge? Why, I should 
think, judging from this case, that down in Barnstable County a man 
is not expected to die who employs as counsel the judge of probate, 
or else he is expected to pay cash for legal services ; because, if he 
dies owing the judge of probate a bill of twenty-five or thirty dollars, 


580 


HEARING —JOSEPH M. DAY. 


[April, 


and the judge undertakes to collect it from the estate, it may be 
regarded a cause for impeachment and removal from office. Who does 
the judge practise law for, I should like to know? Is it not for the 
living? And the living know that they must die. They certainly do 
die ; and that a judge of probate should have a bill against a deceased 
party isn’t any more strange than that any other lawyer should, is it? 
And because he has a bill against a deceased party for services less 
than a hundred dollars, shall he be removed if he collects it? About 
seventy dollars was the amount due Judge Day: he considered the 
condition of the family, he was charitable in the matter, and took 
the sum of twenty-five dollars for the whole. Is it for that act that 
he is to be removed by address? Does the crime consist in that? 

Can there be an} 7 question that the bill was for services rendered 
before the death of Joseph C. Lawrence? Ambrose N. Doane says 
he knew that Judge Day was acting professionally for Joseph C. 
Lawrence in his lifetime, and tells you of the matters that he knew 
of in which professional services were performed. Does he say that 
Judge Day charged him anything as administrator? Not a mill! 
Where is the crime here? For what is Judge Day to be censured? 
Because he collected less than half of his lawful bill against an estate ? 
I have no language adequate to the characterization of such charges 
as these. They are known to be false, or ought to have been known 
to be such. And I say again, it shows how this case has been gotten 
up by hunting over the register’s office, and finding all the accounts 
for twenty-three years in which any item can be found relating to 
Judge Day. They may well say, “ Gold and silver have I none, but 
such as I have bring I unto thee.” This, I submit, is the whole of 
the case under the seventh specification : Judge Day had a bill against 
Joseph C. Lawrence, and he took less than half of it in full settlement. 
If charity is a crime, then Judge Day is guilty; but if honesty, fair 
dealing, and liberality are to be approved and applauded, Judge Day 
in this matter is entitled to approval and commendation, and not to 
censure. 

Now, if the Committee please, I will proceed to consider the Eighth 
Specification , which is “ In 1878, in the case of Samuel Snow, 

GUARDIAN OF Ada StEVENS, IN REFERENCE TO REAL ESTAT^ CLAIMED 

by Morse and Holmes.” 

I will give a brief statement of the facts. The administrator of 
the father of Ada Stevens undertook to sell real estate, and sold in 
excess of his license, and by reason of that gave no title. That was 
in 1872. In 1878 Samuel Snow, — and I may say he is one of the 
active parties in the prosecution of these proceedings on the part of 
the petitioners, — Samuel Snow, the guardian, conferred with Judge 


1882.] 


SENATE —No. 150. 


581 


Day as to the course necessary to be taken to make that title good. 
Judge Day gave the matter careful consideration, acting for the guar¬ 
dian and for no one else, as he understood it, at that time. Samuel 
Snow says himself, that the original sale was for more than the estate 
was worth; so the ward had received every cent from the estate of 
her father that she was entitled to for the real estate: and Mr. Snow 
says, that, in what he did in this matter, he acted wholly for the good 
of the w r ard. Now, in 1878, as I have stated, Judge Day was con¬ 
sulted by the guardian, Mr. Snow, as to what could be done by him 
to make the title good to Morse and Holmes, or the parties who were 
the purchasers of the estate. I wish the Committee to bear in mind, 
that the suggestion of Judge Day as to the ten dollars was after the 
license was granted to the guardian, after Judge Day had performed 
every duty in regard to the matter that he had to perform or could 
perform. I will read what Judge Day says with regard to this mat¬ 
ter. He sa}’s that these are the facts: — 

“I knew nothing more of the matter till the license was granted. I don’t 
know but it was the day the license was granted, or the day after, Mr. Snow 
came into the office; and, in asking some questions in relation to the sale of that 
property under the license, the fact came to my attention that it was Morse and 
Holmes who were moving in this matter through Mr. Cahoon, and not Mr. 
Snow, as I supposed, for the purpose of doing an act of justice. I then said 
to Mr. Snow, ‘ If Morse and Holmes are moving in this matter, if it was for 
their benefit that these proceedings were taken, if they were moving in this 
matter, they should pay me for my investigation.’ I never had the thought of 
charging a cent for any advice that I gave or any direction that I gave to Mr. 
Snow in relation to his proceedings as guardian there; hut, the moment I found 
that Morse and Holmes were at the bottom of this movement, I supposed it was 
another of the numerous cases in which people who have some connection, in 
some way or other, with property that is in or has gone through the probate 
court, were endeavoring to get my services for nothing. 1 thought the time 
I had spent in the investigation of the matter, they ought to he willing to pay 
me for; and I was paid ten dollars for it. If that was an error, it certainly was 
an error of judgment; for, if I ever supposed in my life I was doing an act for 
the purpose of bringing about what was absolute justice between parties, it was 
in that matter.” 

And then this question was asked Judge Day,— 

“ q. _Did you say any thing to Snow about pay till you learned the advice 

was in the interest of Morse and Holmes? A. — No, sir.” 

And there is no testimony on the part of Mr. Samuel Snow that he 
did. 

Let us see if there is any thing of impropriety in this transaction ; 
for, if there is, then Samuel Snow, who comes here as one of the chief 
prosecutors, and desires to remove Judge Day on account of his action 
in this transaction, is the principal offender. If there has been any 
wrong done on the part of Judge Day, the wrong has been greater, 


582 


HEARING —JOSEPH M. DAY. 


[April, 


certainly, on the part of Mr. Snow; but Mr. Snow walks about here 
as innocent as a lamb, and claims consideration from the Committee 
on account of his purity and his high character, and wants Judge 
Day removed for something, — he don’t care for what. Was Samuel 
Snow acting in the interest of Morse and Holmes or of his ward? 
He says, in the interest of his ward wholly. Judge Day says he was 
acting there in the manner in which he did, because he supposed that 
Mr. Samuel Snow had an honest impulse, and he was in favor of his 
carrying it out. He supposed he was desirous of doing there what 
he thought was an act of simple justice. But Mr. Samuel Snow did 
not hesitate to take pay, did he, from Morse and Holmes? Mr. 
Samuel Snow didn’t hesitate at all to perfect the title of Morse and 
Holmes ! Mr. Samuel Snow didn’t hesitate, did he, at all, to appear 
where it might seem, at first view, to be antagonistic to the interests 
of his ward? Samuel Snow is not conscious of having done wrong. 
I do not believe that he did do any wTong in that transaction at all, 
neither did Judge Day. And the only wrong in the whole matter is 
Samuel Snow’s coming here and undertaking to charge Judge Day 
with crime in doing what he himself did. 

I say that this proposition is perfectly sound, — that Judge Da}’ 
had a right to advise Morse and Holmes with regard to the character 
of that conveyance, and take pay for it. I say that that was not 
a matter in any way dependent upon or relating to any sentence, 
decision, warrant, order, or decree made or passed by him, nor was 
it a suit for or against a guardian as such. What objection, pray, 
can be urged against Judge Day advising Morse and Holmes with 
regard to the validity of the deed which they had, whether it came 
from the administrator or not? Judge Day’s power was at an end 
when he granted the license. He had nothing more to do with it 
than that; and the title of people to real estate, however they may 
have obtained it, is a matter perfectly legitimate for him to give 
advice in reference to. He did not, to be sure, give advice to Morse 
and Holmes directly ; but he ascertained that Mr. Snow, as guar¬ 
dian, not disclosing the parties for whom he was acting, came for 
the purpose of getting his advice in relation to this matter because 
he supposed he could get advice for them without pay; and Snow 
never did pay him a cent for it: Morse and Holmes paid it. If 
there is any cause of complaint here at all, it is on the part of Morse 
and Holmes, that Judge Day charged them for services that he never 
directly rendered them. If he did, — I don’t know how high a crime 
that may be, — I think there is hardly an attorney of any experience 
that would say that it was very harsh treatment of parties who 
were pursuing the course that they were, and undertaking to appro¬ 
priate to themselves Judge Day’s services without paying him for 


1882.] 


SENATE —No. 150. 


588 


them. He felt indignant about it. He had a right to feel indignant 
about it. It was a wrong committed against him. He had a right 
to charge for an opinion given to Morse and Holmes in regard to the 
title to that estate; and, if he had a right to charge in that matter, 
certainty he is not gnilty of extortion. 

Now, to review this eighth charge briefly 7 '. In the first place, it is 
not claimed here by anybody that any injustice has been done. It 
is not charged by anybody that Judge Day has corruptly or wickedly 
made any order or decree. It is not claimed here for a moment 
that the estate of Ada Stevens, the ward, has in an}’ manner suffered: 
it is not claimed that one dollar was ever taken out of this ward’s 
property, and paid to Judge Da}’. It is not claimed that Judge Day 
ever charged Samuel Snow one cent for services which he rendered 
him as guardian; although he did take a great deal of pains in regard 
to this matter, and rendered valuable services that he was not bound 
to render by virtue of his official position as judge of probate. And 
I may say, right here, that in a matter which has just come before 
a judge of the supreme judicial court, where there was a bill in 
equity brought to obtain a conveyance from an administrator, where 
a deed was made under the circumstances this was, within a very 
short time the judge dismissed the bill, and said that the remedy 
was what Judge Day said in this case it was, to have the estate 
sold again. Judge Day gave just the advice that any learned and 
upright judge would have given, and gave it in charity. He said 
to Mr. Samuel Snow, “ If that estate is sold, it must be fairly 
advertised, the facts must be honestly and fairly stated; and, if it 
brings one dollar more, the ward must have it. These proceedings 
must be open and above board : there must be no adhering to the 
letter without regard to the spirit of the law. The law must be kept 
here in letter and in spirit.” And Mr. Snow, I think, so acted in 
this matter; and all the proceedings were in the furtherance of jus¬ 
tice, and show, on the part of Judge Day, an earnest desire to aid 
parties in his court in performing their duties. And he did more 
certainty than could be reasonably expected of any judge; but he 
says, In that county the lawyers are few, that the people look to the 
judge of probate as being their friend and adviser. And Mr. Snow 
went to Judge Day in a friendly manner, and Judge Day acted for 
him kindly and considerately, judiciously and judicially, honorably, 
and in accordance with the highest principles of duty; and for that 
this charge is brought against him. I submit that that is cruel, for 
Samuel Snow, after he was treated in the manner in which he was, 
to come here, and undertake to wound Judge Day for this act of 
kindness. The thrust which Joab gave Abner is a thrust of this 
kind. It shows a depth of wickedness that I have seldom witnessed; 


584 


HEARING —JOSEPH M. DAY. 


[April, 


and I cannot conceive of this man ever saying the Lord’s Prayer, 
“ Forgive us our trespasses as we forgive those who trespass against 
us.” I think he omits that clause : I don’t believe his conscience 
would permit him to repeat it. An appropriate prayer for such a 
man would be, “Forgive us as we forgive those whom we have 
trespassed against.” There is where the unforgiveness comes in. 
He knows he has wronged Judge Day; and he hates him as one hates 
the person he has wronged, and comes here, and pursues him with 
fiendish malice. There is no question about it at all; and I say 
again, that I have seldom seen such downright wickedness. Such 
tempers breed murders. Judge Day treated him with the greatest 
kindness. He did every thing for that estate that could possibly be 
done; and, in return for his kindness, Mr. Samuel Snow undertakes 
to blast his reputation and remove him from office. 

If it was a crime for Judge Day to feel indignant when, after 
having labored over this matter as he supposed for Mr. Snow, he 
found that men of means were behind him, and that, while he was 
working for the ward and for the guardian gratuitous^, the guardian 
was acting for these other parties, — if it was an offence 04 the part 
of Judge Day to be indignant at that, I fail to see it. It was not 
acting for the ward, it was not acting for the guardian, it was simply 
this: after everything was done he had to do as judge, he found 
that somebody to whom he had a perfect right to render services 
in this matter, and receive pay therefor, was the principal in the 
transaction, and that Mr. Snow was only the agent. He then called 
upon that party for payment, as he had a right to do upon the 
plainest principles of the law in relation to principal and agent. I 
say that the charge was perfectly legitimate. The whole transac¬ 
tion is one most creditable to Judge Day, most creditable to his 
judicial character; and, on the part of these petitioners, it shows 
nothing but a disposition to pursue him with any weapons which 
they can possibty avail themselves of. 

The next is the — 

Ninth Allegation. — “In 1880, in the case of Mary M. Good- 

speed, ADMINISTRATRIX OF THE ESTATE OF LeVI L. GOODSPEED.” 

Here is another case where they undertake to repay kindness with 
cruelty. Dec. 9, 1879, Mary M. Goodspeed was appointed adminis¬ 
tratrix of the estate of Levi L. Goodspeed. There were two minor 
children, — George M. Goodspeed and Charles F. Goodspeed. Both 
of the minors were under guardianship. Josiali B. Whitman was 
the guardian of Charles F., and Mary M. Goodspeed was the guar¬ 
dian of George M. Goodspeed. In June, 1880, the mother, acting 
as administratrix of the estate, and as the guardian of her minor 


1882.] 


SENATE —No. 150. 


585 


son, George M., in connection with Josiali B. Whitman, the guar¬ 
dian of Charles F., made an arrangement which they supposed to be 
in the interest of the estate with one Joseph L. Proctor. They 
made an agreement, subject to ratification by the judge of probate, to 
sell certain real and personal estate to Mr. Proctor. They went to 
the judge of probate about this, not as counsel, but as judge ; and 
they talked the matter over there, and Judge Da\ r said he would put in 
form their agreement, and make a memorandum of it. He did make 
it, and he made it without an} r charge at all; and I submit that in 
that, certainly, he was doing nothing but a kind and generous act. 
In the county of Suffolk it would not be expected that the judge 
would do that. I rather think the judge in Suffolk w^ould not get 
along very fast with his probate business if he proceeded in that 
wa} T ; but this was in the county of Barnstable, with a population of 
only some thirty-two thousand, and where they have been accus¬ 
tomed for 3 -ears to regard the judge of probate as the gratuitous 
official adviser of all the people in the count 3 r who ma} T have any 
business in process of adjustment in the probate court. Well, now, 
after that there was another agreement. The first agreement was 
found to be unsatisfactory. Judge Day wrote it just as the admin¬ 
istratrix and the guardians directed: but there was found to be a 
mistake in it; and the judge was again appealed to, and again he 
rendered his kindly service in getting the agreement reformed. And 
although Mr. Proctor did not seem quite inclined at first to do what 
was right and fair in the matter, but, when Judge Day appealed to 
him, and said, “You won’t undertake to do a thing of this kind,” 
he finally consented; and then Judge Day drew up another agree¬ 
ment : the} T signed it. He said to them he made no charge ; but he 
told them they would have to pay for the copying of it, that they had 
better go and get a legible copy of it. And each of them had a copy 
made, and paid, each of them, the sum of one dollar. Nothing was 
charged, or thought of being charged, by Judge Day for what he 
had done. It was a perfectly gratuitous service. They went to see 
Judge Day during that summer quite a number of times. The ad¬ 
ministratrix was there quite a number of times to see him with 
regard to this matter; but every thing that he did for her as admin¬ 
istratrix, every thing which he did for the guardians, he did gra¬ 
tuitously. He says he never charged one single cent for it, and 
there isn’t anybody here to say that he did. The testimony, cer¬ 
tainly, independent of his, is that he did not charge any thing for 
any advice or service rendered to either guardians or the adminis¬ 
tratrix’. Take the testimony of Charles F. Goodspeed, upon which I 
shall now comment, and you will find that it is in perfect harmony 
with what Judge Day says about the matter; and there is nothing in 


586 


HEARING —JOSEPH M. DAY. 


[April, 


it, giving it a fair construction, which goes to show that he ever 
thought of charging the guardians or the administratrix one cent for 
his services. 

They put in the testimony of Charles F. Goodspeed, and they put 
in a receipt for money paid by him ; and they want the Committee 
to infer from that that the money was paid how ? B\ t the adminis¬ 
tratrix or by the guardians? Certainly it does not appear that it was 
ever charged in the account of either of them. It does not appear 
that Mr. Whitman ever paid a dollar; but, on the contrary, Mr. 
Whitman says he did not pay a dollar: and he is one of the guar¬ 
dians. There is no testimony that Mrs. Goodspeed ever paid a dollar 
either as guardian or as administratrix ; and Charles F. Goodspeed 
paid what he paid on his own account. I will read the receipt: — 

“ Barnstable, Oct. 21, 1880. 

“Received of Charles F. Goodspeed fifty dollars in full of all demands to 
date.” 

Does that look like a bill against a guardian? Does that look like 
a bill against an administratrix? * 

Oh ! but they may say, that bill w r as made out for a cover. There 
is nothing to indicate it. Mr. Whitman sa}'s he paid nothing. It 
was not a cover so far as he was concerned, was it? If it had been 
paid by the guardian, Mr. Whitman is the man to have paid it; and 
he sa 3 T s he w r as never asked for a cent. Judge Day says it was 
paid for services which he rendered to Charles F. Goodspeed inde¬ 
pendent of the matter of guardianship and administratrix. Is he 
true? He certainly is to be taken to be correct unless the contrary 
clearly appears. I have spoken of the confirmation of his statement 
which you have from the testimon}” of Josiali B. Whitman ; and now 
I propose to consider it in reference to Charles F. Goodspeed’s, and 
see whether there is any thing in his testimony which in any manner 
goes against the testimony of Judge Day. But before alluding to- 
that matter, because it comes in here more naturally, I will call your 
attention to the fact that Judge Da} r said repeatedly to Joseph L. 
Proctor, to Mr. Whitman, and to Mrs. Goodspeed, “You had better 
get counsel: I cannot be troubled about these matters ; ” and, when 
Mr. Proctor charged him with being counsel for the guardians and 
for the administratrix, he says, “ I am not: I am only doing in this 
case what I do for all widows and minors who haven’t counsel. I 
stand between them and avarice when I can do it.” Did Judge Day 
make that statement? Did he say, “ I am not counsel” ? Did he 
advise them to get counsel? Did he say to Mr. Proctor, wdien Mr. 
Proctor was there, time and time again, “ I am not counsel ”? Why, 
the testimony is full upon that point. Elizabeth S. Norris says she 


1882.] 


SENATE —No. 150. 


587 


heard him say so ; Charles F. Goodspeed says he told him so, that 
he said, “I am not counsel,”—and that was in the presence of 
Charles F. Goodspeed. He says now he thought that payment cov¬ 
ered every thing; but he was there, and heard Judge Day say, in the 
presence of Mr. Proctor, in the presence of the guardians, “ I am not 
their counsel.” And, if he had charged him as counsel for the guar¬ 
dians and the administratrix, wouldn’t Charles F. Goodspeed have 
said, “ Why, Judge Day, you are not counsel! You are certainly 
not counsel for us : we have not employed you as counsel.” But is 
there any expression of surprise on the part of Charles F. Goodspeed 
when Judge Da}’ suggests payment? Nothing of the kind. Charles 
knew that he was not counsel for anybody but himself. I have 
remarked before, Mr. Josiah B. Whitman says Judge Day told him 
repeatedly, “I am not counsel.” And do you suppose Judge Day 
is the man to say to Mr. Josiah Whitman, in the presence of these 
parties, “I am not counsel for you,” and then carry in a bill for 
counsel-fees? Was he the man to carry in a bill to Mary M. Good- 
speed for services rendered her as administratrix and guardian, when 
he had said repeatedly to her, “ I am not your counsel” ? Such an 
idea is too preposterous to speak of. I rather think if he had carried 
in a bill, either to Mr. Whitman or Mrs. Mary M. Goodspeed, he 
would have been reminded of what he had said time and time again 
to them, “I am not counsel: I am acting here only as judge of pro¬ 
bate ; I am only standing between this widow and these minors, and 
a man who appears to me to be disposed to overreach.” The pe¬ 
titioners say that he charged counsel-fees. Charged counsel-fees to 
the administratrix and guardian? It cannot be, Mr. Chairman and 
gentlemen. 

He says what lie did do. He says that he rendered services, sepa¬ 
rate and distinct, for Charles F. Goodspeed, and that he charged 
him, and that he told him he should charge him ; and Charles F. 
Goodspeed does not dispute it. lie does not dispute one single 
word that Judge Day testifies to. He has not contradicted him in 
any particular. The young man may now think differently ; but he 
did not contradict him in any particular: on the contrary, his testi¬ 
mony is the strongest confirmation of Judge Day’s evidence. What 
does Judge Day say with regard to this matter? I will read first, 
however, if the Committee please, something from the testimony of 
Charles ; as I have it here in an order which makes it a little more 
convenient to read it first. The question to Charles is, — 

“ q.—W hether you did not consult Judge Day in reference to your fa¬ 
ther’s title to certain real estate with which Mr. Proctor had no connection and 
concern, which Mr. Proctor had no comjnunication with you about, and which 
was situated iu Sandwich ? A. — I don’t remember: I may have. 


588 


HEARING —JOSEPH M. DAY. 


[April, 


“ Q. —Was there any such property in Sandwich belonging to your father at 
any time ? A. —There was, and we had to consult Judge Day about it. 

“ Q. — You don’t remember in reference to the title ? A. —I do not.” 

He does not undertake to question it in any particular. And 
Judge Day says this : — 

“The bill which Charles Goodspeed paid me was for advice to him person¬ 
ally, in no way relating to the settlement of the estate, and was, as I think, an 
exceedingly moderate bill. I cannot but regard it so. And, when Mr. Snow 
spoke on the subject afterwards, my reply was this: 1 Mr. Snow, if I had charged 
Charles Goodspeed for all the service I gave him, it would have amounted to 
several hundred dollars.’ I think there w r as advice to the extent of hundreds 
of dollars that I gave to these people, that was in no way connected with the 
settlement of the estate, but it was what I have had to do ever since I have 
been in the county of Barnstable. I have always done it, and I always shall 
do it wdiile I am judge. All this advice I have to give to the people there. 
They do not understand being sent to attorneys as in a city, and large, popu¬ 
lous counties. They go to the judge of probate because they think he is their 
official adviser.” 

I have already spoken with regard to Mr. Whitman ; and I have 
some considerable testimony upon this point, but I will not take up 
the time of the Committee b} T reading it all. It will, however, bear 
out every statement which I have made ; and I ask the careful con¬ 
sideration of the Committee to the testimony of Mr. Whitman, and 
Mrs. Elizabeth S. Norris, Mr. Thacher, and Charles F. Goodspeed, 
all of whom heard Judge Day’s statements. All of them say that 
Judge Day declared time and time again that he was not counsel, and 
told them to get counsel; and they did get counsel. 

What does Charles F. Goodspeed sa}'? And I haven’t any dispo¬ 
sition to question the young man’s honesty at all. I would not say 
nor intimate a word against him: for he appears to be an honest and 
intelligent young man; and I have no doubt that he will make one of 
those enterprising and useful citizens that the Cape has furnished so 
many of. He says, — 

“I asked Judge Day, when I paid the fifty dollars, how that should be 
divided.” 

I will read just what he says about it: it was in answer to inter- 
rogatoiy by brother Wadleigh. 

“ Q- — When you paid Judge Day this fifty dollars, was there any thing said 
as to how the money should be divided? A. — I asked him how it should be 
divided; and he said, twenty dollars should be charged myself, twenty dollars 
to my brother, and ten dollars to my mother: that is all.” 

And then I asked him,— 

<f Q. — I don’t suppose you remember the whole conversation at the time? 
A. — I do not remember. 


1882.] 


SENATE —No. 150. 


589 


“ Q- —Do you remember whether you said any thing in substance like this : 

‘ My brother and iny mother got the benefit of this as well as myself ’ ? A. — I 
don’t remember whether I did or not: I asked him how it should be divided.” 

And then a question was put by the Chairman, — 

“ Q • — How came you to ask him that question ? A. —I didn’t understand 
that the fifty dollars was wholly for my own benefit, and I wanted to know how 
it should be charged on the account. 

“ Q. — Did you ask if it covered the whole indebtedness ? A. — I asked him 
if it covered all our indebtedness. 

“ Q. — All our indebtedness ? A. — Yes, sir. 

“ Q >—I don’t suppose you are certain whether you used the word ‘our’ or 
1 my ’ ? A. — Certainly not.” 

Now, this is certain, it was not a charge against the estate, was 
not so considered, and never was put in, nor was to be put in, as a 
charge against the estate of Joseph L. Goodspeed, or either of the 
wards. This is certain : the testimony of Charles F. Goodspeed 
settles that beyond all controvers} r . These charges were for matters 
which did not belong nor pertain to the estate. The young man says 
he might have said they would get the benefit of it; Judge Day says 
he has no recollection about the matter one way or the other, and he 
won’t question what the boy says. It is not likely that a man, having 
so many matters pass before him as Judge Day does, could remember 
all the details of each case. The judge made some suggestion of the 
kind in the course of the conversation : certainly that is Charles F.’s 
recollection of it; but he only recollects apart of the conversation, 
and cannot remember all the details. But I sa}q in the settlement of 
the estate the fifty dollars would not have been so divided. It 
would not have been divided in any such form, and therefore that of 
itself is confirmatory of what Judge Day says about the matter. 
Judge Day states here the large amount of services which he rendered 
for Charles, and I wish to call the attention of the Committee one 
moment to that. It is on p. 518 : — 

“ Q.—Now, with regard to Charles Goodspeed’s payment of fifty dollars, 
what was that paid for? A.—It was paid for advice given to Mr. Charles 
Goodspeed for matters not relating to his mother’s duties either as executrix 
or guardian, or Mr. Whitman’s duties as guardian of the child. 

“ Q.—What was the subject-matter of that advice? A. —Well, sir, there 
were a good many matters: I cannot enumerate them. I can give some of the 
principal ones; but I cannot enumerate, by any means, the advice I gave to 
young Goodspeed in relation to matters that were not connected with the 
settlement of that estate. I will give such as I can remember, sir, if you desire. 

“ Mr. Wadleigh. I should like to hear them. 

“Witness. One matter was the question of his father’s right to a certain 
homestead in the town of Sandwich, which had*been conveyed to his father 
upon certain conditions; and the question was as to his father’s claim to the 
property. That was a matter that I was engaged over for some two or three 
days; and I made up my mind in relation to it, and gave him the result. 


590 


HEARING —JOSEPH M. DAY. 


[April, 


“ Q. —Any thing else ? A. —Yes, sir: there was another question in relation 
to the title to some land that had been bought by his father at a tax-sale. There 
was another matter in relation to a threat ened prosecution of him by Mr. Proc¬ 
tor forgetting money from him by false pretences, and an engagement to defend 
him. There was another matter, in which Mr. Proctor threatened to bring a 
complaint against him for larceny of a valuable carriage-robe and a valuable 
whip, and an engagement to defend him should the complaint be made. There 
was another matter in relation to the law as to deposits in savings banks in the 
names of parties, as to the rights of the depositor holding the deposits which 
had been made in the names of other parties.” 

Now, I submit that these are matters with regard to real estate, 
and other matters of a personal nature, and are not matters certainly 
relating to the duties of an administratrix or the duties of a guar¬ 
dian. They were matters that Charles F. Goodspeed desired to 
know about for himself, on his own account. He was an able and 
intelligent young manand he went to Judge Day on his own 
account, and Judge Day- says to him, “ Charles, if I advise you 
with regard to these matters, having nothing to do with the estate, 
I shall charge you.” Charles F. Goodspeed does not contradict that 
in airy particular, nor does he say’ that Judge Day’ has stated one 
word with regard to the services which he rendered that is not cor¬ 
rect, neither does he intimate that the services which Judge Day 
rendered him were not of the value charged. But he supposes it 
included all. There is a certain sense in which it may be said to 
have included all. It was all the charge Judge Day’had to make: 
for he had none to make against Mr. Whitman, he had none to make 
against Mary M. Goodspeed as the guardian of George M. Good- 
speed ; and there was, therefore, a sense in which that may be said 
to include all the charges. He rendered the services to Charles F. 
Goodspeed, and he charged him a price which is reasonable. It was 
paid by’ him, and he does not say whether anybody contributed or 
not towards the amount he paid: that is immaterial so far as this 
investigation is concerned. I say that that charge of fifty dollars 
is as honest and legitimate a charge as was ever made by an attor- 
ney’, and any’ attempt to torture it into a charge against an adminis¬ 
trator or guardian in relation to the performance of their duty’ is an 
attempt to do something which the facts in this case will not warrant. 
It is an assumption that there is nothing in this whole case to sup¬ 
port : that charge is groundless, as all of the others are. 

At the suggestion of the Chairman, Mr. Thompson paused in 
his argument at this point, and the Committee adjourned till 8 
o’clock. 


1882.] 


SENATE —No. 150. 


591 


SEVENTEENTH HEARING. 


Green Room, State House, Boston, 
Tuesday Evening, April 4, 1882. 

The Committee assembled again at 8 o’clock p.m., Senator Jen¬ 
nings presiding. 

Mr. Thompson resumed his closing argument on behalf of the 
remonstrants, saying, The next specification, if the Committee please, 
in its order is No. 10 : — 

“In 1881, in the case of Nathan Crocker, administrator of 
the estate of Nathan Crocker, where the town of Barnstable 
was a party.” 

The facts in this case are, that Nathan Crocker, administrator of 
the estate of Nathan Crocker, petitioned the county commissioners 
for an abatement of taxes ; and, as I understand it, they were taxes 
assessed against the estate of the intestate : and the facts are that 
Judge Da} 7 , by request either of the selectmen or assessors, — and 
they are both the same party in the town of Barnstable, — went to 
the court-house in Barnstable, where the county commissioners were 
sitting, and asked them in behalf of the town to stay proceedings 
until notice of the application for an abatement of taxes would be 
given to the authorities of the town. I think that I will take but 
a very short time in disposing of this, and I will read what Judge 
Day says with regard to that matter. It is uncontradicted, and is 
as follows. The question was, if he remembered the case : — 

“ q. —The Crocker case is the one I call your attention to. A. — I do, sir. 

“ q. —Wliat was it ? A. — A petition by Nathan Crocker, administrator for 
Nathan Crocker, deceased, for an abatement of taxes. A petition had first 
been referred to the assessors, and no evidence introduced before the assessors 
on the subject : they had passed an order refusing to abate the taxes. There¬ 
upon complaint was made to the county commissioners; and the assessors or 
the selectmen — for they are the same persons in the town of Barnstable — 
came to me in relation to the matter, saying to me that Mr. King was coming 
down to Barnstable to have a hearing, I believe, the day or two days after — 
something of that kind, I do not remember just the number of days. I said 
to the assessors that it was impossible — 

“The Witness. As the result of my interview with the assessors, I went 
before the county commissioners. I went first to the county commissioners 
before the day appointed for the hearing, to ask if any complaint had been 
filed there, and found that none had been filed. The day it was filed there, 
two of the assessors came to me; and, as the result of what they said to me, 


592 


HEARING —JOSEPH M. DAY. 


[April, 


I went before the county commissioners, and asked the county commissioners 
not to hear that matter until notice could be given to the town of Barnstable. 
I stated to them that I was there for that purpose, and for that purpose alone, 
— to ask them not to hear that matter until notice could be given to the town. 
They finally concluded not to do it, and that was the whole of it. 

“ Q. —Did you act in that matter after that ? A. —No, sir. 

“ Q. —Did you make any charge for the services rendered ? A. —No, sir. 

“ Q. —Did you present any bill ? A. —No, sir. 

“ Q. —Did you ever ask for any pay ? A. —No, sir. 

“ Q .—And that was all you did about the matter from beginning to end? 
A. —That was all, sir.” 

And the only other testimony bearing on this is that of Nathan 
Edson, who was one of the assessors of the town of Barnstable ; and 
his testimony will be found upon p. 550. There is nothing in that 
contrary to the statement made by Judge Day, that he did go there, 
as he stated, and asked to have that matter postponed. Now, it is 
objected that he went to the county commissioners as counsel; and 
that this being a case where Mr. Nathan Crocker, as administrator, 
had filed an application or complaint for abatement of taxes, that it 
was an appearance. I suppose this is the claim: that it was an 
appearance by him in court in a suit brought by the administrator as 
such, and therefore is within the prohibition of the statute. But I 
have to say with regard to that, in the first place, Judge Day did 
nothing more than what he had a right to do as one of the inhab¬ 
itants of the town of Barnstable. The judge of probate in that mat¬ 
ter does not lose his personal — his individual — rights, although he 
may not have the right to appear as counsel. In the next place, I 
have to say, that it was nothing more than such a friendly act as 
Judge Day would have been expected to do for the people of his 
town, for the assessors. It was not in the character of counsel that 
he was acting; and, if one attorney would not do that for another, 
they must be on most unfriendly terms. It is the most common 
thing in the world for one counsel in matters of form to act for an 
opponent, to perform a friendly office ; and when counsel get into 
the position that the}’ cannot render services of this kind, the one 
for the other, they will certainly be in a more unfriendly position 
towards each other than what counsel are in at the present time, so 
far as my experience is concerned ; and I should just as soon think 
of charging counsel with conspiracy and with treachery, if they per¬ 
formed a kind and friendly service for the counsel on the other 
side, as to charge Judge Day with a wrongful act in stepping in 
before the count}’ commissioners and asking them simply to stay pro¬ 
ceedings until notice might be served on the town. It is an abuse of 
language to call this transaction the acting of counsel. It was not as 
counsel he went there: it was merely the performance of a friendly 


1882.] 


SENATE —No. 150. 


593 


act. He did nothing against the law, or the spirit of the law, in any 
particular. In the next place, I submit, upon the law he did nothing 
that was wrong, even if he went there as counsel. The prohibition 
in the statute is very clear and explicit; and, as I have had occasion 
to say before, where it specifies it certainly excludes. I call atten¬ 
tion again to the 21st section of chap. 158 of the Public Statutes : — 

“ ^ or a °t as counsel or attorney, cither in or out of court, in any suit or mat¬ 
ter pending before said courts, or in an appeal therefrom. 

“Nor for or against an executor or administrator or guardian appointed 
within his jurisdiction, in a suit brought by or against the executor, adminis¬ 
trator, or guardian, as such.” 

Now, I submit that that proceeding was not in any sense a suit; 
there cannot be a suit without a court, and that the county commis¬ 
sioners are not a court. They are sometimes termed a court; but 
the Constitution, chap. 2, sect. 9, provides that — 

“All judicial officers, the solicitor-general, coroners, shall be nominated and 
appointed by the governor, by and with the advice and consent of the council; 
and every such nomination shall be made by the governor, and made at least 
seven days prior to such appointment.” 

And I submit that a county commissioner, under the laws of this 
Commonwealth, is not a judicial officer; and, if he is not a judicial 
officer, he cannot hold a court within the meaning of the law. County 
commissioners are chosen by the people, and they are sometimes 
spoken of as a court: it is sometimes said that the} 7 may be appro¬ 
priately so spoken of, but they are nevertheless not a court; and 
therefore Judge Day did not appear in any suit by or against an 
administrator, because there cannot be a suit without a court. It 
may be said that this is technical. Ah ! but are they not technical 
in accusing Judge Day of making an appearance, by going to the 
county commissioners to perform a friendly act for his town ? Isn’t 
that technical? And isn’t it fair to meet an allegation of this kind — 
where a man was performing a friendly office — by such an answer? 
I say, he violated no law of the Commonwealth; and he is to be 
tried here, if at all, under the law. lie had no right to appear as 
counsel in a suit brought by or against an administrator as such, but 
there was no suit brought. Those proceedings for an abatement of 
taxes did not constitute a suit. The county commissioners arc a 
special board whose duty it is to hear to questions of this kind; and, 
if they are not a court, then this party has been guilt} 7 of no violation 
of law ; and I say again, that a meeting of the county commissioners 
is not a court. The court of sessions was long since abolished; and, 
when many of the duties of the court of sessions were transferred to 
the county commissioners, they made them elective, and made them 
elective because they were not judicial officers, and because they 


594 


HEARING —JOSEPH M. DAY. 


[April, 


cannot bold a court. If they can bold a court, then they are judicial 
officers, and must be appointed by the governor. No statute can 
repeal the Constitution ; and we have the Constitution of Massa¬ 
chusetts as authority to show that the county commissioners are 
not a court. Look into the Massachusetts Digest, vol. i., and you 
will see that, where it enumerates the courts of this Commonwealth, 
it does not put the county commissioners down as a court. Why? 
Because the}' are not a court; and I say again, if the county commis¬ 
sioners are not a court, then the proceedings there were not a suit, 
then there is no prohibition at all, and this is another attempt to 
blast the reputation of Judge Da} 7 and to injure him for a meritorious 
act performed in a friendly manner without any charge, — going 
simply and asking for the selectmen of the town, or the assessors, 
that the hearing might be adjourned. 

The Chairman. Suppose it had been the trial of a cause before 
a sheriffs jury? 

Mr. Thompson. A sheriffs jury is not a court, and cannot be. 

The Chairman. It is held — 

Mr. Thompson. Oh ! I see no legal objection to appearing at all. 
There may be other than legal objections, but there is no legal objec¬ 
tion whatever.- The law of Massachusetts says he may appear, what¬ 
ever I may say about it. My statement is immaterial, because the law 
provides that he may do it; and, when the law says he may, what any 
person says is wholly immaterial. It says he may appear, except it 
is a suit by or against an administrator as such ; and it is not a suit 
in any sense of that word : and I say again, there was no violation of 
law 7 . Take it that the answ r er may be technical: the charge is tech¬ 
nical, and is without any foundation in fact. Is Judge Day — I ask 
this Committee, and through it the Legislature — to be removed by 
address from his office of judge of probate and insolvency for the 
county of Barnstable because he stepped in before the county com¬ 
missioners, without making any charge of it, in a friendly man¬ 
ner, and asked the county commissioners to continue the hearing 
until notice might be served upon the tow r n? 

I say again, that they make this charge because they have nothing 
else, and it is another attempt to punish him fordoing a charitable act; 
and I say again, it shows how this case lias been gotten up, — charges 
first, and then hunting around for testimony afterwards, and getting 
the best they can, which is worse than none at all. I will say no more 
upon this point. It ought to be treated with contempt by every hon¬ 
orable man, and ought to consign those who are pressing this peti¬ 
tion upon such charges as these to the contempt of all honorable 
men. 

The next specification in number eleven, “In itie case of Brad- 


1882.] 


SENATE —No. 150. 


595 


ford L. Crocker, executor of the will of Betsey Kelley” — 
it is somewhere between 1868 and 1874. Letters of administration 
were taken out in 18G8, and in 1874 there was a settlement of the 
account. The facts in this case are, Bradford L. Crocker and Hiram 
Nyc were appointed executors of the will of Betsey Kelley on the four¬ 
teenth day of January, 18G8. She devised her property to the Evan¬ 
gelical Society of Ilyannis, and in certain contingencies the same was 
to go to the Home Missionary Society. Mr. Bradford Crocker is the 
principal witness, and his claim is this : he says, that on the thirtieth 
da}’ of December, 1870, he went to the Parker House for the purpose of 
consulting Judge Day there ; that he didn’t receive information from 
him that was satisfactory : and that he thought or suggested that it 
might be that Judge Day desired some money, and he took out five 
dollars, and gave the same to the judge. And that is the statement 
of Mr. Bradford L. Crocker. Now, what I wish to say about his 
statement is this: it is so contradictor}’, and shows such an entire 
want of accuracy and lack of recollection, that it is not entitled to 
any consideration at all. He says that what he went to consult Judge 
Day in reference to, was the barn. He says, I was in doubt as to the 
barn. 44 1 don’t remember any thing special in regard to it, only a 
general idea. It has not come to my mind for the past ten years.” 
He says he does not remember about it, in the first place; and, when 
he undertakes to testify with regard to it, it is certain that lie does 
not remember about it. Judge Day says he never took a cent from 
him for any advice given to him as an executor of the will of Betsey 
Kelley; that he consulted him about some matters, but he doesn’t re¬ 
member definitely now what they were ; but it was nothing in reference 
to his duty as executor that lie made the charge to him for, if any, or 
received compensation for. And now, if the Committee please, I 
wish to call attention to the first question put to him in the cross- 
examination, which appears on p. 17G. 

“ Q' — Where did the party live whose will you were executor of ? A. —In 
Ilyannis, Barnstable County. 

“ Q. — What was the question concerning which you were in doubt ? A. — It 
was in regard to a portion of the real estate.” 

That is what he says about it, — nothing with regard to his duties 
as executor at all. He had no duty to perform there as executor of 
that estate in reference to the real estate. The real estate passed by 
will to the Evangelical Society of Ilyannis, and to the Home Mission¬ 
ary Society, and he had no interest whateyer in it. He was there, he 
says himself, to consult Judge Day with regard to real estate; and 
that was the first time his attention had been called to this matter. 

I will read a few questions and answers. They will explain my 
position : —- 


596 HEARING — JOSEPH M. DAY. [April, 

“ Q ,—Have you the will with you ? A. —No, sir. I have no writing with 
me. 

11 Q. — Do you know now, from recollection, what the provisions of the will 
are ? A. — In general ? 

“ Q.— In particular. A. — Perhaps definitely enough to answer your pur¬ 
pose. I can tell what I remember of it. 

“ Q. —What was the precise question that you were in doubt about? Won’t 
you state it to the Committee? A. —It w T as in regard to the barn belonging to 
the homestead.” 

And not with regard to his duties at all as executor. 

“Q.—What about the barn? A. —It was found to set partially on the 
adjoining piece of land: perhaps from one to two feet over the bounds of the 
homestead. 

“Q, — On whose land was it ? A. — It was land that had been sold to a rela¬ 
tive of the widow, by the name of Baker: I think Henry Baker owned it. 

“ Q. — Do you know what disposition was made of the real estate? A .— 
Yes, sir. 

“ Q. — What disposition was made of the real estate ? A. —It was given by 
will to the missionary society,—the Congregational Missionary Society; and 
the question in regard to the barn was — 

“ Q. — All of the real estate given to the missionary society? A. —Yes, sir: 
all the homestead. 

“ Q. —And the barn was what ? A. —Was portion of the real estate. 

“ Q. —It was on the land that was given ? A. — Yes, sir: part of it was. 

“ Q. —Was there personal estate? A. — There was, sir. 

“ Q. —Enough to pay the debts ? A. — Yes, sir. 

“ Q. — Won’t you tell what you had to do with that real estate as executor ? 
A. —I had to see that it was taken care of. 

“ Q. — What right had you to attend to it? Didn’t you know that the 
will itself conveyed the real estate to the missionary society, and that you had 
nothing to do with it at all ? Did you understand that? — that the will itself 
conveyed the real estate to the missionary society, as any other conveyance, and 
that you, as executor, had nothing to do with it? A. — 1 simply understood — 

“ Q. — No, no: answer me that. A. —I had no care of it whatever. 

il Q. —Nothing to do with the real estate? Didn’t you know that the estab¬ 
lishment of the will was a conveyance, the same as a deed, and conveyed the 
property to the missionary society, and that your whole business was with the 
personal estate, and that alone? A. — Do you mean to ask me — 

“ Q. —No, no! I ask you if you didn’t know? A .—I don’t understand 
the question,” etc. 

Now, sir, lie afterwards in his testimony goes right directly against 
all of that; and here let me call attention to the question on the top 
of p. 180 : — 

“Q. —I don’t know but you did, but won’t you just answer it again ? A. — 
I don’t know any thing about three deeds. 

“ Q. — Don’t you know that Mr. Nye, your co-executor, bought one of those 
pieces himself ? A .—I knew that he bought a piece of land that the barn 
stood on, a couple of feet, and claimed the barn, and moved it off, and called it 
his own; and that was one point of difference between the executors, and it 
was one point in regard to which I consulted Judge Day.” 


1882.] 


SENATE —No. 150. 


597 


And then, when he found out that the executors had nothin" to do 

o 

with the real estate at all, he said it was advice about other matters, 
and as to the management of the estate in general. I say that wit- 
ness didn’t testify fairly : he showed a want of recollection which 
makes his testimony of no value at all; and he has said distinctly 
that the barn was the matter in which he was in doubt, that was the 
matter that he consulted Judge Day about that da}’. I asked the 
witness repeatedly, ‘-Did 3011 consult him about anything else?” 
And he said he could not remember any thing else. What are the 
facts about the barn? It appears that the barn was sold by the 
owner : it was sold by the Evangelical Society of Hyannis, for twenty- 
live dollars, to Mr. Hiram Nye ; and there was no question about it. 
He supposed probably there might be some question about it in some 
way: he may have had some fancy questions in his mind : but, cer¬ 
tainly, in the matter of the barn he is wholly mistaken. There never 
was any controversy about it, and Mr. Nye scouts at the idea of his 
ever claiming it because two feet or so of it lay on his land. He 
scouts at the idea of there being any difficulty about it at all. He 
says it was an old shed of little value, and that he bought it of this 
Evangelical Society; and I say now that Mr. Bradford L. Crocker’s 
testimony, fairly interpreted, shows that he did not consult Judge 
Day at the Parker House with reference to any matter pertaining to 
his duties as executor. He says that he was in doubt about the real 
estate, that he consulted him with regard to the real estate, that he 
has no recollection of consulting him on any thing else, that he thinks 
he had no other matter in his mind when he went there to consult 
Judge Day, except the real estate. And any consultation that he 
had with Judge Day with regard to that real estate, with regard to 
the title to it, and didn’t concern him at all as executor, was upon a 
question which he had no right to consult a judge of probate, or to 
expect any answer from him, in relation to, as an aid to him in the 
performance of his duty as executor; and what surmises he may have 
had with regard to Hiram Nye are of but very little importance. 

I ask this Committee if they are going to say upon that evidence that 
he consulted him with reference to the duties of the executor, when he 
says he did not. Let him say he did. The one assertion neutralizes 
the other, and nothing is proved. His evidence is so contradictory as 
to make the whole unreliable. Will you take the first or the last state¬ 
ment? If they are contradictory, which is to receive credit? But 
this is certain, when Bradford L. Crocker saw that lie was not mak- 
incr out any case against Judge Day, that he then, for some reason or 
other, changed his position, and said that he went to consult Judge 
Day with regard to matters which he had before said he did not con¬ 
sult him about. He says afterwards that he consulted him with 


598 


HEARING —JOSEPH M. DAY. 


I 


[April, 

regard to his duties as executor; but when asked about it in particu¬ 
lar, and his mind is brought to the subject, he sa}*s it wasn’t so. 
Then he sa^ys that Judge Da} r wrote to him a letter, saying in sub¬ 
stance, “ I will settle all the difficulty between you and j’our co-ex¬ 
ecutor if you will give some money.” And he sa}’s the question was 
about the twenty-five-dollar barn which the other executor had bought 
and moved on to his land, and that was the only article that he inti¬ 
mates he spoke to Judge Da} T in relation to at all! This man’s 
recollection is all wrong about that. If he received a letter, it must 
have been different from that; and if his recollection isn’t any more 
reliable than that in regard to what he consulted Judge Da} r about, 
certainly it has no value whatever, . He has not the letter : he doesn’t 
remember its contents, because it is impossible that it can have been 
any thing like what he says with regard to it. No amount of money 
is mentioned. 

There being no difference between the two executors, as it appears, 
except as to a barn worth twentj'-flve dollars, which Nye bought of 
the Evangelical Society in Hyannis, and paid for, and removed on to 
his own land, and in which this executor Crocker had no interest 
whatever, — to say that Judge Day made an offer to settle that diffi¬ 
culty by the payment of money to him, is too preposterous to talk 
about: there was not any other difference or matter between them. 
And he says this: Judge Day wrote him a letter, and said that he 
would adjust the difference between him and his co-executor, in 
regard to that barn, if he would give him some money ; and lie didn’t 
mention what matter it was, or what sum was to be paid. What in¬ 
terest had Bradford L. Crocker in that barn to adjust? Think of it. 
Judge Day’s going to settle a matter for him with a co-executor about 
an old barn, if he would send an indefinite sum of monej\ Will the 
Committee sa}’ any thing is proven that testimony? He did not 
show a fair mind, independent of his entire want of recollection. 
And when he says, “ For ten years it hadn’t been called to my 
mind at all, and I have no definite recollection about it, and only 
remember that I consulted about the real estate and barn,” he shows 
enough to indicate that the recollection is not reliable. He says he 
kept the letter a long while because it was a curiosity. I have never 
heard of its getting into the museums. It was taken such precious 
care of that it was lost and forgotten. The witness has not given 
you any correct idea in relation to it, because what he says was the 
substance of that letter has nothing reasonable or probable about it 
whatever. It has no reference to the facts of this case. He puts it 
where it is not entitled to any weight or consideration at all. 

Judge Day’s testimony more than counterbalances his. Judge Day 
knows that in the whole term of his office he never has taken a dollar 


1882.] 


SENATE —No. 150. 


599 


for advice given an executor, as such; and it cannot be shown that 
he* has by any reliable testimony. Mr. Crocker thinks lie put it in 
his account; but there is no account put in this case where any 
thing of the kind appears. Nor does he bring in the letter. Such 
testimony as his ought not. to convict a man of an}’ thing. The clear 
preponderance of evidence is against him : its own improbability is 
its own refutation. Judge Day’s statement about this matter is 
entitled to a hundred-fold more credit, because he recollects: he has 
had his mind on this subject; and for twenty-three years of faithful 
service as judge he has never taken a dollar for advice in property. 
I challenge anybody to show that he has. Does anybody believe that 
Judge Day was taking money in violation of law? I submit, that, if 
he were disposed to do it, he would not take it in any such way as 
that. It is not the way wicked men act: concealment is one of the 
badges of all crimes. There never has been any concealment on the 
part of Judge Day in reference to any act of his. 

The next allegation or specification is No. 12 : “In the case of 
Isaiah Gifford, guardian of the estate of Mary Stid.” 

Isaiah Gifford was appointed guardian of the estate of Mary Stid 
of Provincetown in 1871, and the bond was approved on the 8th of 
August, 1871 : the final account in that estate was allowed Feb. 13, 
1877. The sum of $30.06 was charged in the account as attorney’s 
fees. And these are the facts : William Stid signed a note which 
was regarded as invalid, and Mr. Gifford went to Judge Day about 
it. The note was for about $300, and Judge Day says at that time 
he hadn’t any intimation or suggestion from Mr. Gifford that lie was 
in any way acting as guardian, and he had no notice at all that this 
Mary Stid w r as under guardianship. Of course it was of record in 
the probate court that she was under guardianship : but I submit 
that a judge of probate is not presumed to remember every case 
out of the thousands of cases that go through his court; and, if his 
attention is not particularly called to the matter, it is quite possible, 
and not at all improbable, that he may not remember the fJet that 
a party is under guardianship. There is nobody here who testifies 
that what Judge Day says in relation to that matter is not perfectly 
correct. Let us examine this matter a little more particularly. There 
never was any administration taken out upon the estate of William 
Stid. Mr. Gifford went to Judge Day with reference to the adjust¬ 
ment of a note, and Judge Day had a right to act in that matter. 
How it might have affected his action afterwards has nothing to do 
with it, because, in relation to that estate, there was no administra¬ 
tor. This matter was adjusted by him; and Judge Day had no right 
to suppose any thing otherwise than that it was by some friend of 


600 


HEARING - JOSEPH M. DAY. 


[April, 


the party in interest; and he advised with regard to the matter, 
and adjusted it. He could not have adjusted it for an administrator, 
because there wasn’t any ; and I sa}’ again, if one had been appointed 
afterwards, there might arise a different question ; but “ sufficient 
unto the da} 7 is the evil thereof.” It is sufficient that that question 
never did arise; and what might have been the effect of it on subsc- 
quent action if administration had been granted, is not at all to be 
considered in this case, for the contingency never arose. It was no 
violation of any law of the Commonwealth. He was not acting for 
the guardian of Mary Stid as such. Mary St id was an insane person, 
not a minor; and there is no particular reason why Judge Day’s 
attention should have been called to the fact that she was an insane 
person. I will read wffiat Judge Day says with regard to this case : — 

“ Q. —Did you act for him at the time he was in the capacity of guardian? 
A. —I did not. I wasn’t aware that he was guardian of Mary Slid. I was not 
aware that she was under guardianship, and could not be, and should not be, 
unless it was specially called to my attention.” 

And there is nothing here in the testimony of Mr. Gifford which 
goes at all against that testimon} 7 of Judge Day. 

Before this matter was adjusted, Mary Stid became of sound mind. 
Mr. Gifford was discharged as guardian, and the matter was settled 
with her at a time when she was not under guardianship. The pay¬ 
ment w r as made by her, so far as an} T thing appears here, when she was 
not under guardianship. Mr. Gifford says he thinks it was after he 
was appointed guardian that he consulted Judge Da}’: Judge Day is 
in doubt as to whether it was before or after Mr. Gifford was ap¬ 
pointed that he consulted him. It was adjusted when Mary Stid was 
of sound mind, and when she had the right to deal with this matter for 
herself; and she did deal with it, and approved of the action that had 
been taken when she had a perfect right to. Where is the offending? 
I say that this is not appearing in or out of court as counsel or attor¬ 
ney in any suit or matter where the administrator of William Stid 
was a party. It was not appearing as counsel in or out of court in 
any suit or matter where the guardian of Mary Stid was a party. 
But it was the settlement of a claim by Judge Day for a party that 
he had no reason to believe was acting in any official capacity at the 
time. When the account of this Mr. Gifford was settled, $30.06, 
the charge was allowed, — and allowed by Mar}- Stid herself, and by 
no one else. And she had a perfect right to pay it. I do not know 7 
their claim, because there was not any opening in this case by the 
counsel for the petitioners. They didn’t state in detail their claim ; 
and I am laboring, in presenting this case for the remonstrants at the 
close, under a good deal of difficulty by reason of that. For it is 
impossible for me to comprehend wffiat the ingenuity of counsel may 


1882.] 


SENATE —No. 150. 


601 


suggest, or what position the} 7 may take, in regard to these matters. 
It is usual and customary for parties to state their positions at the 
commencement, but we have not had the benefit of that in this case. 
The question was put to Judge Day,— 

11 Q- Judge Day, did you ever give Mr. Gifford, as guardian of Mary Stid, 
any advice whatever, or receive from him any compensation, or make against 
him any charge ? A. — Never! ” 

And whatever he did in this matter was done for Isaiah Gifford; 
and, if it had inured to the benefit of Mary Stid, I don’t know any 
reason why she might not pay for it. I see no reason why, if Isaiah 
Gifford saw fit to take up this claim and settle it, he could not do it: 
and he would have had the right to have administered upon the estate 
of William Stid, if necessary to adjust it; but it didn’t become neces¬ 
sary, as Mary Stid became of sound mind, and the matter was 
adjusted with her without trouble or difficulty by Mr. Gifford, not as 
her guardian, therefore there was no necessity for administering upon 
the estate of William Stid, and Mr. Gifford collecting the money out 
of that estate if he were entitled to it. It is no answer to my po¬ 
sition to say that Mr. Gifford was probably acting in the interest of 
his ward. He was not acting for her, or on her behalf; and, I sub¬ 
mit, he had no right at all to pay the claim for her; that this is not 
such a claim as he had the right to settle for her. It was a claim, 
if at all, against William Stid. Isaiah Gifford as her guardian had 
no right to adjust claims against the estate of William Stid, and 
charge them to his ward ; but when the ward became sane, and he 
saw fit to resign his guardianship, and she to approve of what he 
had done, aud save the necessity of taking out letters of adminis¬ 
tration on the estate, it w r as her right; and the fact that this was all 
settled after the woman became sane, and was discharged of her 
guardianship, is a perfect answer to any suggestion that may be 
made that he was doing any thing improper and unfair in his action 
in settling that note for Mr. Gifford. 

The next specification, if the Committee please, is on p. 109, and 
is supplementary to the original twelve, and was presented on the 
fifth day of the hearing. It is as follows : — 

“In the case of Varanus B. Nickerson against Edward E. 
Crowell et als., in the superior court for the county of 
Barnstable, during the years 1867, 1868, 1869, and 1870, which 

SUIT OR MATTER DEPENDED UPON AND RELATED TO CERTAIN DECREES 
AND ORDERS MADE AND PASSED BY HIM AS JUDGE OF THE COURT OF 
INSOLVENCY IN THE CASE OF VARANUS B. NlCKERSON.” 

The facts in regard to this are : Varanus B. Nickerson, an insol¬ 
vent debtor, filed his petition on the 23d of August, 1864, and the 


602 


HEARING —JOSEPH M. DAY. 


[April, 


warrant was issued on the 24th of August, 1864. The first publica¬ 
tion was Aug. 26, 1864 ; and Sept. 13 warrant and schedule were 
returned, and the assignees appointed, Prince S. Crowell and Eben- 
ezer Bacon. On Jan. 10 a petition to stay proceedings was filed, 
and it was returnable on the 14th of February of the same }’ear. 
On the sixteenth day of May, 1865, the proceedings, so far as they 
relate to Varanus B. Nickerson, were stayed as prayed for ; and by 
the Public Statutes, chap. 157, sect. 142, there is this provision for 
the vacating of proceedings : — 

‘‘When a creditor who has proved his debt petitions the judge to vacate the 
proceedings in a case, the judge may order the proceedings to be stayed, and, 
after due notice to all persons interested in the estate, and a hearing of the 
matter, if no objection is made by the debtor or any such creditor, may pass 
an order vacating all proceedings therein.” 

Now, in judicial proceedings, every presumption and intentment of 
law is to be taken in their favor; and there is not any thing in this 
case even suggested b} T anybody going to show that all the proceed¬ 
ings were not in the strictest conformity to the law in every partic¬ 
ular. There is not a suggestion from any source that Judge Day, in 
the matter of the proceedings in that case, acted otherwise than as a 
wise, upright, impartial judge ; so that up to the time of the vacating 
of those proceedings, Judge Day is certainly without fault. And, if 
any wrong has been done by Judge Day, it is by his subsequent 
action in reference to a suit in which Varan us B. Nickerson was 
plaintiff, and which was brought for him by Judge Day ; and the 
facts as to the suit are these: A writ was made, dated May 27, 
1867, and made returnable before the Superior Court for the county 
of Barnstable at the September term then next following. It was a 
suit brought upon a policy of marine insurance, in which the allega¬ 
tion of loss was on the 28th da} T of Februaiy, 1861, which was prior 
to the petition of Varanus B. Nickerson for the benefit of the insol¬ 
vent laws of this State : May 27, 1867, was two }’ears after the va¬ 
cating of the proceedings. Now, there cannot be any question 
but what an assignment made in the usual form to Prince S. Crowell 
and Ebenezer Bacon would convey to them the interest of Varanus 
B. Nickerson in that policy of insurance, and the right to recover 
for the loss, if such right existed ; and it is equally clear that the 
vacating of those proceedings carried the property not disposed of 
by the assignees back b} T operation of law into the hands of Varanus 
B. Nickerson ; so that Varanus B. Nickerson became the owner ao-ain 
of that policy of insurance b} T operation of law, and, as it will be 
claimed, b}^ virtue of the order of Judge Day vacating proceedings in 
that case. I suppose that the claim is clearly set forth in the allega¬ 
tion, “which suit or matter depended upon and related to certain 


1882.] 


SENATE —No. 150. 


603 


decrees made and passed b} T him as judge of probate and insolvency 
in the case of Varanus B. Nickerson.” Certainly it will not be 
denied for one moment that the effect of that order, under the law 
of Massachusetts, was to revest the property in Mr. Nickerson, and 
that he held it, — putting it in the strongest wa} T , for I don’t want to 
reduce the force of the facts at all. I certainly have not intended, 
I think the Committee will say, to understate any facts in this case 
which may appear to make for the petitioners. I want it stated as 
strongly as can be, that the decree of Judge Da} r vacating the pro¬ 
ceedings of insolvency vested the property in Varanus B. Nickerson ; 
and, if the law prohibits Judge Day from bringing a suit in such a 
case, then he is prohibited in this case : but I certainly do not under¬ 
stand that to be the law. Now, with regard to the law upon this 
point, I know it may be said, as we say in mathematics, it is 
reduced now to its simplest form in the statute itself; and, for clear¬ 
ness, I will read that portion of it which relates to this particular 
matter again, — chap. 158, sect. 21 : — 

“No judge shall be retained or employed as counsel or attorney, in or out of 
court, in any suit or matter which may depend upon or in any way relate to a 
sentence, decision, warrant, order, or decree made or passed by him.” 

That is the clause of the section, as I understand it from the speci¬ 
fication, which it is claimed prohibits Judge Da} r from bringing this 
suit. What is the legal interpretation of that clause ? and upon that 
I have but a few words to say. I say that this is not the case to 
which the prohibition applies. It applies to cases, and none other, 
where the cause of action depends upon or relates to a sentence, 
decision, warrant, order, or decree, made or passed by him ; or 
whenever it appears that the question of the validity of a sentence, 
decision, warrant, order, or decree, that may have been passed by the 
judge, is put in issue, or affects the merits of the question in contro¬ 
versy. In such a case the judge cannot appear as counsel or attor¬ 
ney, whether the fact appears by the pleadings, or is developed by 
the pi’oof. And I have put it in the broadest way because I want to 
meet this question, and put it in the strongest way it can be claimed 
by the petitioners with any reason or plausibility even. Now, is that 
suit brought against the company in violation of that statute ? The 
object of this prohibition is clear. It is to prevent a judge from 
appearing, either in support or in opposition to a sentence, decision, 
warrant, order, or decree made or passed by him. There are but 
few cases where the validity of a decision or sentence of a judge of 
probate and insolvency can be brought in question collaterally. A 
sentence, decision, warrant, order, or decree made by a judge may be 
put in evidence in a suit or matter, without this suit or matter 


604 


HEARING —JOSEPH M. DAY. 


[April, 


depending upon, or in any way relating to, the same, within the 
meaning of the statute. An}’ other construction of the statute will 
be found, upon consideration, to be unsound. If a judge of probate 
and insolvency cannot act as counsel or attorney in any suit where 
the title to any real or personal estate which has been sold by an 
administrator, executor, or assignee, or has been conveyed by will in 
his county, or in an estate settled during the term of his judgeship, 
then the longer the judge holds office the more restricted will be his 
field of practice ; for in thirty years nearly all the property in the 
county will have passed under his official administration, either in the 
one court or in the other. To illustrate : the judge of probate brings 
a writ of entry to recover a piece of real estate which has been sold 
by a devisee, executor, administrator, guardian, or assignee, after it 
has passed through a number of mesne conveyances ; and the question 
to be tried is the title of the intestate, or testate, or insolvent debtor, 
to the real estate at the time of the death, or at the time of the insol¬ 
vency, of the party. Can it be said that the title depends upon, or 
in any way relates to, the order of the judge in granting letters 
testamentary or of administration, or in issuing the warrant of insol¬ 
vency? Why, just look at it a moment! It in no way depends upon 
the order at all approving the will, granting letters of administration, 
or issuing of a warrant in insolvency. The question to be settled 
and determined is the title of the intestate, or of the testate, or of the 
insolvent. The question of the validity of the decree probating the 
will, or appointing an administrator, or declaring an estate insol¬ 
vent, cannot be brought in issue at all. It cannot be said to 
depend upon the validity of the warrant or order ; it cannot be said 
that the validity of such warrant or order is brought in question ; 
it cannot be brought in question, and no one knows it better than the 
learned counsel for the petitioners. If its validity cannot be brought 
in question, then can it be said to depend upon or relate to it? Can 
the issue be said to be in any sense the validity of that order or 
decree ? Certainly it cannot. 

Suppose a party in a real action should undertake for a moment, 
as bearing upon the question of title, claimed to have been acquired 
by will, to show that the will was improperly probated. I think he 
could not stand long on such a defence; and the court would say, you 
cannot attach it collaterally : it is not one of the issues. You cannot, 
raise such an issue. An attempt to do it would be a vain thing, from 
which no benefit could possibly arise. There are some cases in which 
a decree of a judge of probate and insolvency may be put in issue. 
To illustrate : Before the present insolvency law was changed as to 
pleading of a discharge, you might, in every suit brought against an 
insolvent discharged if the debt existed prior to his insolvency, dis- 


1882.] 


SENATE —No. 150. 


605 


pute the validity of his discharge ; and, if such discharge were put in 
issue, a judge of insolvenc} 7 could not appear in such case. Why ? 
Because the validity of his order granting the discharge is put in issue 
in that suit: when that issue is raised, a judge of insolvency must 
step out of the case at once if he has been of counsel. 

Take another case which ma}' arise. The question of jurisdiction 
can alwa} r s be taken advantage of. Supposing that the question is 
raised in a suit at law, that in some order put in evidence, passed 
by a judge, he had not jurisdiction of the subject-matter, it was a case 
of ultra vires, the judge cannot then defend his jurisdiction, because, 
in that case, the validity of his warrant or of his decree is put in issue. 
In the case of Varanns B. Nickerson that law is not applicable. The 
validity of the order of Judge Day could not be put in issue. The 
pleadings do not show that its validity was put in issue. If it was 
known by the counsel that these proceedings were vacated, there was 
no meaning in the plea ; and the pleadings here are such that I cannot 
conceive of any lawyers making them. If aware that the proceedings 
had been vacated, the}’’ might as well plead the first chapter of 
Matthew. It is just as relevant to the facts as the plea put in that 
the assignees were the owners of the claim in suit. 1 assume that the 
counsel were not aware that the proceedings in that case had been va¬ 
cated. The} r could not raise the issue that the order vacating those 
proceedings was illegal. The counsel here has not got ingenuity 
enough to suggest any wa}’ whereby he could bring the validity of 
that order vacating those proceedings in issue in this case. It was 
not put in issue by the pleadings; and, unless it could be put in issue 
in the course of the proceedings, Judge Day had a perfect right to ap¬ 
pear as counsel. I am not going to say it is necessary in all cases to 
have it appear in the pleadings that the validity of an order is in issue ; 
for, if it appears by the proof that the validity of the order is in issue, 
then the judge cannot act as counsel; and if the validity is not in 
issue, and cannot, in any manner, be questioned or affected by the 
proceedings, and is simply a matter of evidence, the judge has a 
perfect right to appear, I say again ; and any other construction of 
that law would be manifestly absurd. Let me take another case: 
Twenty years ago a will was probated in Barnstable County ; and real 
estate was conveyed by that will, and Judge Day buys it. After a 
while, a party brings a writ of entry against Judge Day to recover 
that estate from him. It is necessary to show for his defence the title 
of the testator to that estate ; and the party who brings the writ of 
entry says, “Your testator had no title to it at all: the property 
belonged to me.” Now, according to the theory put forward 
here, Judge Day cannot put in the fact that the testator had a 
title to that real estate, because he admitted that will to probate, 


606 


HEARING —JOSEPH M. DAY. 


[April, 


and, therefore, he must lose his estate. He must be impeached if 
he undertakes to defend a title of that kind. Is that the meaning 
of the law? Cannot Judge Da} r even safely bu} T an estate that has 
belonged to the estate of a deceased person? Take another familiar 
case: Judge Da} r buys a horse that in the past, some years before, 
belonged to some estate, was the property of some deceased person, 
either a testator or intestate ; and the horse is replevied on the ground 
that it didn’t belong to the testator or intestate. If the doctrine 
claimed b} T the counsel for the petitioners is sound, he must give up 
his horse ; for he cannot defend the suit, because it depends on a de¬ 
cree probating the will or appointing the executor or administrator; 
and, if he defends the suit, he is liable to be removed from his office. 
I do not believe if he went into court with the defence that the horse 
belonged to an intestate, and he purchased him of the party who 
purchased him of the administrator, that the court would sa} T he 
had no right to make such a defence as the validity of his order 
appointing the administrator was in issue, that the title to the horse 
depended upon an order passed by him. That statute has no appli¬ 
cation to such a case. 

Take another case (and I submit these cases because they illustrate 
the principle) : A stock of groceries belonging to an insolvent estate 
is sold. Hasn’t Judge Daj r a right to buy a barrel of flour sold by the 
assignees of this estate, although it may have passed through a 
number of hands before his purchase, because the right of the as¬ 
signees to sell depended upon his order appointing them ? And 
suppose further he were to eat some of that flour, cannot he defend 
against a party who undertakes to get possession of it b} T a stomach- 
pump, because he appointed those assignees without being liable to be 
removed from his office of judge? This is not law or common sense. 
General words are aptly restrained according to the subject or person 
to which they relate ; and the words “ or in an}' wa} T relates to ” add 
no force, nor alter the meaning of that phrase “depends upon;’’ 
and the question is, whether it “depends upon’’ the decision, sen¬ 
tence, order, warrant, or decree. 

I say again, it cannot be said that in those cases I have enumer¬ 
ated the cause of action depends upon any sentence or decree 
of the judge of probate or insolvency ; and it cannot be said that the 
validity of his warrant, order, or decree can in an} T w r ay be brought 
in question. If it cannot, I say, then, there is no reason that can be 
urged why the prohibition ought to extend beyond what I have already 
stated. The whole case is this, — if my position is right with regard 
to it, — that if, in that suit brought by Judge Day for Varanus B. 
Nickerson to recover upon that policy of insurance, the cause of ac¬ 
tion didn’t depend upon any decree made by Judge Day, then he had 


1882.] 


SENATE —No. 150. 


607 


a right to bring it. The cause of action was a loss under a policy of 
insurance. That is all of it. The decree has nothing to do with it 
one way or another. The validity of the decree could not be put in 
issue in any form whatever ; and, if it could not be put in issue in any 
form whatever, then it could not be said to depend upon or relate to it. 
If it cannot depend in any just sense of the law upon any r thing 
which cannot be tried, cannot be put in issue, then Judge Day 
acted rightly. I trust I have made myself distinctly understood 
upon that question. The case stands precisely the same as if no 
insolvency proceedings had ever been had ; and Judge Day had the 
same right to appear in that case as he would have, had Varanus B. 
Nickerson never gone into insolvency. The cause of action did not 
depend upon any decree of his, and any attempt to make it appear 
so must fail. 

The Chairman. I think we will stop here, Mr. Thompson. That 
finishes all the allegations under specification one. 

Mr. Thompson. The fourteenth allegation — that is a matter of 
some importance — to show how the allegations are put in here 
without any proof. It is as follows: “-In the tear 1879, in 

THE CASE OF THOMAS H. LAWRENCE, ADMINISTRATOR OF THE ESTATE 

of Charles Dimmock.” That was waived. That, if the Committee 
pleases, covers all of the specifications made under the first allegation. 

Adjourned until Wednesday, April 5, at 9 o’clock a.m. 


608 


HEARING —JOSEPH M. DAY. 


[April, 


EIGHTEENTH HEARING. 


Green Room, State House, Boston, 
Wednesday, April 5, 1882. 

The Committee resumed the hearing at 9 o’clock, Senator Jennings 
presiding. 

Mr. Thompson continued his closing argument, and said, At the 
adjournment last evening, I had substantially finished what I have 
to say with reference to the eleventh specification, which is with 
regard to the case of Bradford L. Crocker, executor of the will of 
Betsey Kelley ; and I wish to add what I intended to have said last 
evening in reference to the three writs of entry brought by Judge 
Day, — one against Cjtus A. Baker, one against William G. Baker, 
and the other against Hiram Nye. Those were brought, as the Com¬ 
mittee will remember, in favor of the Evangelical Societ}' of H}*annis, 
to whom this property at that time belonged ; and, with reference to 
the right of Judge Day to bring those actions, what I said with ref¬ 
erence to his right to bring the action upon the insurance policy in 
the case of Varanus B. Nickerson will fully apply in all particulars, 
and therefore I deem it wholly unnecessary for me to sa} r an} T thing 
further with regard to those writs of entry. The}' were brought by 
the owner of the premises; and the actions in no manner depended 
upon any sentence, decision, warrant, order, or decree of Judge Day, 
within any fair interpretation of the statute. A great many questions 
were asked with regard to the accounts rendered by the executors in 
that case, and there was nothing elicited that has any relevancy to 
the matter under consideration here. The account was made out in 
the handwriting of Charles Demond, who was the treasurer, I think, 
of the Home Missionaiy Society, the Home Missionaiy Society taking 
the estate upon certain contingencies ; and in fact that society was, 
as it appears, a mere missionary station under the charge of the 
Home Missionaiy Society ; and the Home Missionary Society and 
the Evangelical Society of Hyannis were substantially the same party, 
and all matters were fully and satisfactorily adjusted by the parties. 

Charles Demond and Bradford L. Crocker made out the account. 
It is in the handwriting, as I said before, of Charles Demond, and 
was a full, satisfactory, and amicable adjustment of all the matters 
between them. They put their indorsement on the account: it w r as 
with their consent it was allowed ; and Judge Day had nothing more 
to do with that account than the judge of the Supreme Court has to 


1882.] 


SENATE —No. 150. 


609 


do with a judgment which is entered by consent of the parties upon 
an agreement which is put upon file. And it would be just as reasona¬ 
ble .and just to charge the judges of the Supreme Court with a 
guilty knowledge in relation to a judgment that is entered in their 
court by the consent of parties, as to charge Judge Day with any 
thing unfair in relation to what may appear upon an account made out 
by the parties themselves, and which all the parties in interest have 
agreed to. Such an account is allowed as a matter of course, and 
just as much as matter of course as a judgment would be in the 
Supreme Court upon an agreement of parties. I allude to this 
matter, not knowing what use the counsel for the petitioners may 
purpose to make of it. ' 

I will now call y*our attention to the eighth allegation, which is as 
follows: — 

“ That, about the year 1874, he wrongfully demanded and 

RECEIVED FROM ALICE CROWELL, NOW ALICE NeWCOMB, THE SUM 
OF FIFTY DOLLARS, SHE THEN BEING ADMINISTRATRIX OF THE ESTATE 

of Willard A. Crowell.” 

Willard A. Crowell had made application for a policy of insur¬ 
ance upon his life ; but, before the policy was issued, he died, and 
she had no claim at all upon the compan}\ His widow married 
again, and that accounts for the change in the name. I do 
not know that I can present this case any more clearly than the 
testimon}' of the parties presents it. It is certain that Judge Day 
did not appear for her as administratrix of the estate, so it does not 
come under that law which provides that he shall not appear in any 
suit or matter brought by or against an executor, administrator, or 
guardian, as such. There was no suit brought, and therefore no 
opportunity for him to act as counsel. Now, these are the facts — 
from the testimony of last year of Alice Newcomb : — 

“ q. _ Were you a widow at the time of your marriage ? A. — Yes, sir. 

“ Q. — What was your former husband’s name ? A. —Willard A. Crowell. 

il Q . —And you resided where with him ? A. — At Barnstable. 

“ Q. — How did he die, and when ? A. —He was drowned on the 4th of Sep¬ 
tember, 1873, in Barnstable Harbor. He was fishing. The boat capsized in a 
squall, and he was drowned in attempting to reach the shore. 

“ q. _Previous to his death, do you know whether he applied for insurance 

upon his life ? A. —Yes, sir, he did. 

<< Q. — How long before ? A. — A few days, — not more than two or three 
days. He applied to the agent. 

“ q. _Did he effect any insurance before his death ? Do you know whether 

any policy was issued to him ? A. — No, sir: because he was drowned before 
the letter of acceptance reached the agent. He was drowned the same after¬ 
noon that the letter was on its way to the agent. 

<< _Do you remember what company the application was made to? A. 

— Yes, sir: the Mutual Life Insurance Company of this city. 


610 HEARING — JOSEPH M. DAY. [April, 

“ Q. —Then, upon his death, who was appointed to administer upon the 
estate? A. —I was. 

“ Q. —Were there any steps taken to intercede with the insurance company 
to see if they would make any allowance ? and, if so, please state what. A .— 
Well, there was none made at my option. I never asked anybody to make any, 
and never expected any, because I knew they were under no obligations to pay 
me any thing; and so, of course, I didn’t expect any thing. 

“ Q .—Please state to the Committee what there was about it, if you knew 
of any efforts being made in the direction of obtaining an allowance. Did you 
know of any efforts being made before the allowance came? A. —Yes, sir: I 
think I did. I heard something said about it, — about Judge Day’s going to 
Boston frequently; and they thought likely he might go and see about it.” 

And she sat T s then it was a surprise that he took pay, and then 
the question was put by one of the Committee, — 

“ Q. —Was this money paid over to the estate, four hundred and fifty dollars, 
or put into the bank in your own individual name ? A. — In my own indi¬ 
vidual name. 

“ Q. — It was never passed to the estate ? A. — No, sir.” 

So that that had nothing whatever to do with the estate, and I am 
at a loss to understand how it can be relied upon at all as showing 
any improper action on the part of Judge Day T . But she is mistaken 
about this matter. Mr. Thacher, who was then register of probate 
and insolvency^, gives his testimony in relation to this subject. The 
question put to Mr. Thacher is, — 

“ Q. —Did you do any thing about or in relation to the collection of five 
hundred dollars insurance money that Mrs. Crowell received after the death of 
her husband ? 

“ Q. (By Mr. Burdett.) —Do you know whether Mrs. Crowell came to the 
probate office to see Judge Day ? A. —I do. 

“ Q .—Did she, or not? A. — She did. 

“ Q. —Was it before or after the collection of this insurance money? A. — 
It was before the collection. 

“ Q. —Were you present at the interview? A. —I was not present at the 
interview, I think. That I don’t remember particularly about, but I think not: 
I was present when she came and inquired for him. 

“ Q. (By Mr. Burdett.) —Did you have an interview before the collection 
of this insurance money, before the visit of Mrs. Crowell to Judge Day, at the 
probate office, in relation to the collection of that money? A. —I did, sir. 

“ Q. — Will you state what the interview was ? A. — Mrs. Crowell sent for 
me. It was no sister sent for me. 

** Q. — Mrs. Crowell sent for you ? A. — Yes, sir. 

“ Q. —Did they occupy the same house ? A. —Yes, sir. 

“ Q. —And Mrs. Crowell saw you herself? A. —Yes, sir. 

“Q. — What did she say about this matter? A. —She said the policy was 
about being issued when Mr. Crowell was drowned, and the papers were nearly 
there; and she wanted to know if there could not be something done by some 
one about getting something from the insurance company. I told her I did 
not know whether there could, or not. She wanted to know what she could 
do about it, and I advised her to see Judge Day. 


1882.] 


SENATE —No. 150. 


611 


Q. You. have stated that after this you saw her go and see Judge Day, 
but don’t remember that you heard the conversation ? A. — Yes, sir: I think I 
did not hear the conversation.” 

This is the situation of it up to this point. She was advised to go 
to Judge Day: she did go to Judge Day; and Judge Day’s state¬ 
ment with regard to this matter is a clear explanation of all the facts, 
and in harmony both with the testimony of Mrs. Crowell and the tes¬ 
timony of Mr. Thacher. Judge Day says as follows : — 

“Mrs. Crowell came to my office, and I talked with her upon the subject. 
She is mistaken in supposing that she did not talk with me upon that subject. 
In consequence of the conference between her and myself, I came to Boston 
to see Mr. Henry Crocker, who was president of the life-insurance company 
from which her husband was expecting a policy of insurance at the time he 
was drowned. I had several interviews with Mr. Crocker, came to Boston 
twice, I think at Mr. Crocker’s suggestion, for the purpose of meeting the 
directors of the company. But I had no meeting with the directors. The 
business was done, I think, entirely with Mr. Henry Crocker, the president. 
After quite a deal of negotiation and talk, I finally said to Mr. Crocker, that, 
if the company would make Mrs. Crowell a present, 1 would write an article 
for the newspaper to be published there in the county of Barnstable, to help 
them, if possible, in business there; and any thing that laid in my power I 
would do towards directing anybody who wanted insurance in a life office to 
that company. The company concluded to make her that present of five hun¬ 
dred dollars. I wrote the article, and it was published; and I charged Mrs. 
Crowell fifty dollars. I told her I wanted fifty dollars; for I had paid out 
about twenty-five dollars for expenses, and I thought I ought to have twenty- 
five dollars for my services. There was not a word said about the expenses of 
court. The word was not used. It never was in court. She is mistaken about 
that.” ■ 

This is another case where Judge Da}", for doing a friendly act, 
is brought here to answer as a criminal. They charge him with 
a violation of law because he went to importune this insurance com¬ 
pany to make a present to this widow of five hundred dollars. He 
did every thing which a liberal, high-minded man could do. He was 
not acting in the position of judge of probate ; he was not acting as 
an attorney for an administratrix: but he was acting as her friend 
and attornej 7 , and she received the full benefit of his labors. They 
say that fifty dollars was too much for him to charge. I have yet to 
learn that, for such services as he rendered, fifty dollars is an unrea¬ 
sonable sum. It may be claimed that he ought to have given her the 
five hundred dollars, and put fifty dollars more to it. I don’t know 
what the claim may be ; but this thing is certain, that all she obtained, 
four hundred and fifty dollars, was obtained by the efforts of Judge 
Day in her behalf, and all the compensation that he desired was 
twenty-five dollars to meet his expenses and twenty-five dollars for 
his services. And five per cent I believe is not regarded by attor¬ 
neys as a very exorbitant commission for the collection of money 


612 


HEARING —JOSEPH M. DAY. 


[April, 


where money is actually due; but I think, that, for collecting money 
under the circumstances this was collected, five per cent is a small 
amount for the service rendered. It cannot be said, that because 
she was administratrix, and because he was a judge of probate, there¬ 
fore he ought not to have meddled with this matter at all; because, 
if there w r as any claim here, it was a claim by the administratrix of 
the estate of Mr. Crowell; for it is admitted on all hands that there 
was no claim at all. She says she had none ; and therefore }’ou start 
with the fact established that there wasn’t any claim, and could not 
be any claim. Then I submit that a suggestion of that kind has no 
force at all, because the facts take away the basis of it. I ought not 
to detain the Committee longer upon this specification ; but I will say 
this: it is another instance where Judge Day’s charitable deeds, 
where his regard for widows and orphans, is charged upon him as a 
crime ; and, where he might expect to receive commendation and 
approval, he is charged with a grave offence. And it seems, so far as 
these petitioners are concerned, that virtues are regarded as crimes. 

Of course, under the second allegation,— 

“That he improperly and illegally sat and acted as judge 

OF SAID COURT, BEING OR HAVING BEEN COUNSEL IN THE MATTERS 
ABOVE SPECIFIED, AND HAS BEEN IN THE PRACTICE AND HABIT OF SO 
SITTING AND ACTING,” - 

there was no evidence upon that point; and it is merely put there as 
a conclusion to be drawn from the testimony given under the several 
preceding specifications. 

The next allegation is number three : — 

“ That he has been privy to the taking of illegal fees by 

THE FORMER REGISTER OF SAID COURT, AND HAS COUNSELLED AND 
ADVISED THE SAME.” 

< 

By the former register, I suppose it means Mr. Thacher, and not 
Jonathan Higgins, who originated the practice. Why didn’t they 
bring up the former register? Was it to protect this Jonathan Hig¬ 
gins, at whose suggestion this dollar was charged, and who inaugu¬ 
rated the charge made by the former register Mr. Thacher? Wh} r , 
would you say that the former register Jonathan Higgins and the 
register under Judge Marston were corrupt? It would be just as 
honorable to charge our excellent attorney-general with misconduct 
in office, and attempt to remove him from office, because during hia 
term of office a register of probate took a fee of twent}’-five cents in 
certain cases. Would not every man say, to attempt that would be a 
crime? Everybody knows, who knows Judge Marston, that he is an 
honorable, high-minded man, and would not have consented in his 


1882.] 


SENATE —No. 150. 


613 


office or anywhere to the doing of what he regarded as an illegal act. 
What are the facts about this matter? When business was done in 
a more informal way than it now is in the count}" of Barnstable, 
there was a fee of twenty-five cents demanded and received from 
parties making application there for administration, and proceedings 
of that kind, to meet the little extra trouble the register mmht have, 
and to pay the postage if there was any. It was twenty-five cents in 
Judge Marston’s day,—this covered postage; but, if no postage 
was required, I understand the same sum was charged. And I ask 
the attention of the Committee to this fact, that the amount is not 
material whether it is a quarter or a dollar: it is the principle 
which is to be considered. And, if the principle is wrong, it is just 
as wrong in principle to take a quarter of a dollar as it is to take a 
dollar. The crime w’as just the same then : it was taking illegal 
fees, if it can be so considered, which I certainly cannot agree to. 

Jonathan Higgins was register there for some fifteen years, from 
the very commencement of Judge Day’s term of office, from the 
time of the adoption of the law consolidating the probate and the 
insolvency courts ; and I think that what Jonathan Higgins says 
about this matter is a fair explanation of this transaction. He 
says, — 

“Some two or three years after that, I am not able to say just -when, there 
was a very radical change in the manner of doing business in the probate office. 
Previous to this, a simple letter from any one wishing to take out letters of 
administration, or to prove a will, or to be appointed a guardian, —they would 
drop a note to the officers of the court, and that was considered a petition. At 
this time I speak of, when the change took place, there were uniform blanks 
all over the State to be used in the probate office. New forms of petition and 
bonds —every paper that was to come in — were given out.” 

The Chairman. Is that in this year’s report, Mr. Thompson? 
The only testimony of Jonathan Higgins I have is on p. 279. 

Mr. Thompson. I do not know that it is- in, but I certainly sup¬ 
posed it to be. But it is immaterial: the fact is the same. And I 
will not read, but simply state the fact, that, under Judge Marston’s 
administration, the charge was twenty-five cents ; and Jonathan Hig¬ 
gins, afterwards finding more work to be done under the new system, 
put it at a dollar; and this Jonathan Higgins is the man who is an 
expectant for this office of judge, if Judge Day can be removed. 
And would it not be contemptibly wicked, I ask, for any man to go 
to the Governor and Council, if he were nominated, and say to them, 
Jonathan Higgins is not fit for that office, because he took illegal 
fees when he was register, and ought to have been removed for that? 
Why, Judge Day at most can only be an accessory; and they want 
to turn out the accessory, and put the principal in office. That is 


614 


HEARING —JOSEPH M. DAY. 


[April, 


the way they want to dispose of this matter. And does Jonathan 
Higgins think he was guilt}^ of any crime? I think not. I believe 
that Jonathan Higgins thinks he was acting honorably and uprightly, 
and I think so too. I have no fault to find with Jonathan Higgins 
in that matter. His construction of law, in my judgment, is per¬ 
fectly right. I may be wrong about it; but, if I am, it is an error 
of judgment only. ‘It was the register’s own act, and Judge Day 
had nothing to do with it; and I submit that under the law he had 
nothing whatever to do with it. The register of probate is elected 
by the people, and does not hold his office by appointment from the 
judge. His duties are as clearly and well defined as those of the 
judge; and the judge has no more right in matters of this kind to 
dictate to him than he has to the judge. And I think Jonathan Hig¬ 
gins would have said, if Judge Day had undertaken to interfere with 
him, 44 Judge Day, you will find it as much as } r ou will be able to 
do to faithfully perform your duties : I am striving faithfully to per¬ 
form mine.” 

Now, let us see for a moment what this great crime is that is 
charged upon him. It is said that a dollar was charged by the regis¬ 
ter of probate for postage and filling-out of petitions. A petition 
is not a proceeding in court until it is presented : it is not a suit 
b}^ or against an administrator as such, and a party certainly is 
not under any obligations to use a blank after it is filled. It was a 
matter of choice with him ; and to say that a register of probate can¬ 
not fill out a blank petition before any proceedings are had in court 
is sajfing something that the law does not sa} T . I know that the law 

is, that no register of probate shall be interested in any fees or emolu¬ 
ments in his office, but the term-fees and emoluments have a legal 
meaning. Fees and emoluments appl} 7- to the performance of some 
dut}" on the part of the register, and he has not the right to charge 
or be interested in any fee or emolument for any official duty performed 
by him. But this was not an official duty: it was something which 
he had the right to do. There is no prohibition in the statute against 

it. In the county of Barnstable it was of great advantage to the 
people. It was a benevolent act on the part of Jonathan Higgins. 
The county of Barnstable is one of the most inconvenient coun¬ 
ties for the transaction of business in the whole Commonwealth. It 
is more than seventy miles in length, and at this time the commu¬ 
nication between the different parts of the county was quite poor; 
and people, for the sum of a dollar, could send and get their 
blanks, could have them sent to them filled, and then send back and 
then receive the official papers, and all for a dollar. I never heard of 
a lawyer yet that ever charged less than five dollars for services of that 
kind; and, if there is any lawyer that ever has done it for a less 


1882.] 


SENATE— No. 150. 


615 


sum, I never have had his acquaintance. Some charge a good 
deal more, of course, depending on the character of the estate 
and parties: attorneys in the country, so far as I know about 
it, fill a petition and bond, and present it, and get the papers, 
and charge five dollars for it. These parties, under the benign 
policy of Jonathan Higgins and of his predecessors, were enabled to 
get their papers for a much less sum ; and the people of that county 
were very material!}’ benefited by the action, and no wrong done to 
anybody. But, if it be a wrong, it is not a wrong for which Judge 
Day is in any manner responsible. He found the policy established 
when he took the office. He never interfered with the register; he 
could not have stopped it if he would so far as legal power is con¬ 
cerned : and how far admonition from Judge Day would have had 
effect on Jonathan Higgins, I leave it for the Committee to judge. I 
think Mr. Higgins would have thought he had more right to advise 
Judge Day than Judge Day to advise him. There was no such rela¬ 
tion existing between the judge and register that rendered it proper 
for him to make the suggestion in regard to that matter. And it is 
not whether Mr. Higgins received fees when there was not a warrant 
in law for it; but it is a question whether Judge Day shall answer 
criminally for not doing that which he had not the legal power to do. 
He had no legal power to stop the register from doing what he did. 

The question was put to the register : — 

“ Q. — Has Judge Day ever received one cent, or been in any way, directly or 
indirectly, benefited by any thing which you have received, or which has been 
paid you for any service? A. — Never one cent.” 

And where, I ask, is the crime on the part of Judge Day? It is 
another instance, where, through malice, they have made a ground¬ 
less charge against him. He is without fault in any particular. 
And I won’t criticise Jonathan Higsrins about it, because I say he is 
without fault in the matter; and, so far as this matter is concerned, 
in my judgment he is to be commended. It may be said, that, if 
such things as these are tolerated, evils will grow up, and the time to 
meet agression is to meet it at the threshold; but for more than 
twenty-five years no evil has resulted from it, and nothing but good 
has resulted from it. I think it is not unsafe to apply the Scripture 
rule in this case, u Ye shall know them by their fruits.” 

The fourth specification is, — 

t ‘ That he was privy to and consented to the violation of law 

BY SAID FORMER REGISTER OF PROBATE IN NOT KEEPING A CASH-DOCKET 
OPEN AT REASONABLE TIMES TO THE INSPECTION OF THE PUBLIC, AND IN 
NOT ACCOUNTING FOR AND PAYING OVER THE FEES RECEIVED BY HIM 


HEARING —JOSEPH M. DAY. 


616 


[April, 


quarterly, as required by law, to the Treasurer of the Common¬ 
wealth.” 


And the fifth is substantially the same. It relates to the same 
subject: — 

“ That he did not audit said register’s quarterly accounts, 

AND DIRECT WHAT SUMS HE SHOULD PAY OYER TO THE TREASURER OF 

the Commonwealth, as the law required.” 

All that can be said with regard to those charges is, that that 
law was passed in 1862 ; and, before a case arose in his court under 
it, Judge Day went to the war. He went into camp on the 15th 
of August, and his attention was not called to that matter at all. 
He says, — 

“That law never came to my attention. I am perfectly ready to admit it; 
or, if it did, I had forgotten all about it, so many years had passed since the 
bankrupt law was in operation, and I bad nothing to do. There is very little 
insolvency in the county of Barnstable. At any rate, if I ever knew about that 
law, I had forgotten about it. It was passed in April, 1862, and it was to go 
into force thirty days from date. At that time I was going over the county of 
Barnstable and over the First District, making speeches pretty continually, 
raising men for the army.” 

Soon after he returned from the war he was appointed provost-mar¬ 
shal for the district of Massachusetts by Gov. Andrew, and had charge 
of the matter of enlistments for a long time. And of the manner in 
which he performed his duties in that office sufficient evidence will be 
found at the adjutant-general’s office, to which I certainly would most 
respectfully refer this Committee. Soon after that, the bankrupt law 
came into force, and there wasn’t any thing for the court of insolvency 
to do in this particular; and it kept in force until Aug. 30, 1878, 
and went into force in 1867. During that time there w r as nothing to 
which this law would apply; and Jonathan Higgins — who will cer¬ 
tainty claim that he was a model register — never presented any 
account to the judge of probate to audit. Probably the law escaped 
his notice. It is a blessed thing that in the county of Barnstable 
cases of insolvency are rare ; and all that can be said about it is, that 
Judge Day didn’t have his-attention called to the law. I don’t see 
how he can be regarded as guilty of any great offence. The register 
did not call his attention to it. If he had, he would have audited his 
accounts ; and it was merely an inadvertence, and nothing more. To 
say that he was guilt}’ of any intentional wrong is to charge that which 
all the facts in the case show is without foundation. The Common¬ 
wealth never lost a single dollar in this matter ; and Judge Day did 
all that any honorable, high-minded man could do about it. When it 


1882.] 


SENATE —No. 150. 


617 


was called to his attention, he saw that such action was taken with 
regard to the matter that the bondsmen of the register were fully 
indemnified, and saved harmless. He saw to it that the Common¬ 
wealth of Massachusetts lost not a single cent it, and no injustice 
was done to an 3 T body by this inadvertence ; and to call this a crime 
is a crime itself. There was due to the Commonwealth some two or 
three hundred dollars, and it was paid. Where is this crime? I think 
that any one of us in looking over the statutes might find laws that 
we were not aware of, and find that, if we had been aware of them, we 
would have done quite differently; but we do not think that we 
are criminal^ 7 responsible, especially when we remember the imper¬ 
fect index of the statutes. It is a very common thing for the best of 
attorne 3 'S to overlook some provision of law. I asked the efficient 
Treasurer of the Commonwealth, when he was upon the stand, if he 
ever called the attention of Judge Da 3 7 , or of the register of probate, 
to this omission ; and he said he never had, because he didn’t consider 
it was any T part of his business. Certainly it is not for me to criticise 
his action ; but, if the suggestion had been made, it would have been 
attended to at once, as it was attended to the very moment the matter 
was called to the attention of the judge. Mr. Thacher kept a cash- 
account which made substantially a cash-docket; but this is an imma¬ 
terial matter. Judge Da 3 7 knew that he kept the amount of receipts, 
and that is all. It is not a question of how the register performed 
his duties, but it is only a question whether Judge Day” has been 
guilty of an 3 7 criminal neglect; and what I say, in closing upon 
this, is that Judge Da 3 ' was guilty of no offence because he didn’t 
make himself familiar with that provision. It was an inadvertence. 
As soon as his attention was called to the law, he did ever 3 T thing 
which an honorable man could do: he did every thing to protect the 
Commonwealth, and took such action as saved all parties in interest 
from injury or loss. And there may be a question upon the construc¬ 
tion of that law, — whether he would be called upon to audit it, unless 
it was presented to him. I will not discuss it. No account was ever 
presented to him. If an account had been presented to him, and he 
refused to audit it, if his attention had been called to the matter, and 
then he refused, there might be some reason in the complaint: but as 
it is, I submit, there is no reason for complaint; and ever 3 T thing 
that he did after he was aware of the law is entitled to commenda¬ 
tion, and not to censure. 

I had arranged, in my mind, before I arose to speak, to present 
the sixth allegation immediately after the seventh ; but it passed 
from nry memory at the time, and I shall now treat it, although out of 
the order which I had intended to. That allegation is as follows —I 
think it has not been amended any further than what I have. It is 
as follows : — 


618 


HEARING —JOSEPH M. DAY. 


[April, 


“ That in 1878, on the caks near Coiiasset Narrows ; at Mid- 
dleborough, in 1880 ; in 1879, at Davis’s hotel in Falmouth ; and 
ABOUT 1873, ON THE CARS GOING FROM BOSTON TO BARNSTABLE ; AND AT 
OTHER TIMES AND PLACES, — HE WAS INTOXICATED UNDER CIRCUMSTANCES 
CALCULATED TO BRING HIS OFFICE INTO CONTEMPT.” 

It is a fact, sir, which appears upon the record, that last year in 
the investigation they undertook to establish the fact that he was in 
the habit of using intoxicating drinks to excess. There is no claim 
of that kind made now, because the charge, if made, would be 
refuted by the testimony of last year; and now Judge Day has 
been proved to be a temperate man, upon the evidence of his neigh¬ 
bors, — his near neighbors and acquaintances, —from the men who for 
thirty years have known him, and men who have met him where some¬ 
times a little intoxicating drink is considered to be necessary to in¬ 
crease the cheer or to soften sadness ; but on all these occasions no 
one has ever seen Judge Da}' even when he took a glass of intoxicating 
drink. And a man that has been through political campaigns, and 
has been at suppers after political meetings and the glorifications of 
victories, and upon none of these occasions has ever been intoxicated, 
nor seen even to have taken a glass, must be a temperate man. 
The exhilaration of victory in the cause that he had dear to his heart 
was excitement sufficient for him. And what do we find here? We 
find that they have put out their drag-net over the whole Common¬ 
wealth, and have tried to find something against Judge Day in this 
particular. When you want to know a man’s habits, go in his 
neighborhood, among his acquaintances. If you go to the people who 
are transacting business with him day by day and year by year, find 
from them that he is a temperate and abstemious man, you may be 
certain that you have ascertained the facts, and that any aspersions 
cast upon his character in that particular are gratuitous. 

I propose to consider the several charges made against him, and 
will treat the Middleborough one first. You saw the witness come 
upon the stand to testify to intoxication at Middleborough. He 
didn’t say any thing, and that charge was dropped. It was a charge 
made without any foundation. They have no right to put such a 
charge upon the record, and then see if they can’t get evidence to 
sustain it afterwards. It is not dealing fairly with the party, to 
spread upon the record a charge of that kind without there is some 
reliable testimony by which, at least, an excuse for the making of it 
can be made to appear. 

I will take them in the order in which they are specified : “In 1873, 
ON THE CARS between Boston and Barnstable.” And fliis appears 
to be one of the leading guesses upon this branch of the case. Judge 


1882.] 


SENATE —No. 150. 


619 


Eay, in the summer-time, was on his way home from Boston to Barn¬ 
stable. It does not appear at what place, but at some point on the 
road, he saw a lad}" with whom he was acquainted. The family he 
had known: the father, a highly respectable man, was a friend of his. 
There was a lady sitting in the seat with her, and a child upon the 
seat turned back opposite. And Judge Day took a seat with the 
child. Certainly up to that time there is nothing very criminal. The 
lady with whom he was acquainted introduced him to the other lad}’, 
and he says he noticed she didn’t respond ; but he supposed it might 
be some peculiarity of hers. The lady took out of her satchel a bottle 
of lager beer, and asked him if he would take a glass of lager, just a 
glass of lager. She had a silver cup ; and I suppose, although the 
Committee are temperance men, they know about the size of a lager- 
beer bottle: they know that it holds one glass. He offered to, and 
did, uncork the bottle, turned out a little lager, and all three of them 
took some of it, — one glass for three. I don’t suppose this is a great 
crime. Travelling in hot weather you will find the water in the cars 
more poisonous than lager beer. No man ever takes such water 
a second time. He may do it once, and that will suffice for a 
long time ; and if people travelling in the cars in warm weather take 
something as cooling, and no stronger than lager, it appears it is not 
evidence of depravity which ought to be called total. It was upon 
quite a long trip, and Judge Da} 7 took a third of a glass of lager beer. 
Judge Day noticed that the lady to whom he was introduced was intoxi¬ 
cated, and sat in such a position that he could not leave his seat with¬ 
out attracting attention. What ought Judge Day to have done ? Ought 
he to have reprimanded her, and left with an air of haughty scorn ? 
Judge Day did just what any gentleman would have done under the 
circumstances. He appeared not to notice that the woman was 
under the influence of liquor. He says that she sat in such a position 
that he could not get out by her without making it appear what the 
difficulty with her was; and he sat there until she lifted herself 
farther on the seat, until he could pass out, and that when he could 
pass out of the seat he did so. This conduct has in it that which 
indicates what Judge Day is, — a gentleman, — and had an appre¬ 
ciation of the proprieties of the situation. Judge Day was sorry 
that this woman was in that condition, as any one would be. Rus¬ 
sell Marston is the principal witness, and I commend his testimony to 
the careful consideration of the Committee. He says that he was sit¬ 
ting on the opposite side, about four or five seats in the rear of these 
parties, and says, when the bottle was uncorked, it smelt either of 
brandy or whiskey or gin. That is what he smelt, though at this 
distance; and he must have a very keen sense of smell to do it. 
Everybody knows when the cars are close the atmosphere is oppres- 


620 


HEARING —JOSEPH M. DAY. 


[April, 


sive; and to undertake to say r , that in such an atmosphere he could 
smell whiskey, gin, or brandy, where there was nothing but lager, show 
how unreliable he is. It shows the disposition of that witness most 
conclusively. He says that it is his habit to make extravagant state¬ 
ments. He was asked about this : — 

“ Q. — I am asking you whether you are not in the habit of making very 
extravagant statements of matters you undertake to describe ? A. — I guess 
that is a characteristic of mine, to be extravagant.” 

Well, I guess it is when he comes to odors. That is all that we 
want to know about him in this particular. If he is extravagant in 
regard to odors, he will be extravagant in all his testimony in this 
case. 

Well, then brother King wanted to help out a little. Pie say's,— 

“ Q. — To be earnest ? A. — By extravagant I mean earnest.” 

Yes, he does mean earnest, and he is earnestly extravagant. And 
then you don’t want to know more about him than the way he has 
of talking with regard to the Bible and the clergy 7 , — the flippant 
manner in which he speaks of them ; and he shows conclusively that 
he is not a man whose judgment is to be relied upon in any partic¬ 
ular. Pie did not give an account of any thing which Judge Day 
said or did which goes in any manner to show that he was intoxi¬ 
cated. He said that he thought he was having a good time about it; 
i.e., that he seemed to be jovial: but I have y r et to learn that that 
is an indication of intoxication. If you can’t have good cheer with¬ 
out rum, it is something I have not yet ascertained. The most jovial 
men I ever met have been cold-water men ; and I submit, if you 
want a jovial man, take a cold-water man. Rum ma 3 T cheer for a 
time, but only 7 for a short time; and you will find that the sub¬ 
sequent depression is quite equal to the past exaltation, and that it 
sours and makes a man irritable and melancholy', and takes from his 
countenance the jovial smile which is the result of temperance and 
the other virtues. Mr. Marston cannot conceive of a person being 
jovial without being drunk. It shows the character of the witness. 
All that the testimony of Marston really 7 amounts to is, that he saw 
Judge Day drink something in a cup, that came from a bottle. 

You have one other witness who comes in to aid in this matter; 
and, if I remember his name aright, it is Mr. Joshua M. Howes. 
Mr. Howes’s testimony in this case is not entitled to any particular 
weight, as going to show that Judge Day was in any other condition 
than that of his normal state as a temperate man. His testimony is 
found on p. 270, and I commend that also to the careful attention 
of this Committee. Now, this is the testimony of Joshua M. Plowes. 
He says, that in passing through the cars he did not stop a mopiept. 


1882.] 


SENATE —No. 150. 


621 


He didn’t enter into any conversation with any one, or make any 
examination in particular at out this matter. He saw Judge Day 
when he was pulling the cork out of a bottle, and passing something 
from it in a cup to the persons opposite him. That was all. There 
was nothing there which could by any possibilit}’ have indicated 
intoxication ; and I submit that Mr. Howes seems a little anxious to 
make this case as strong as it is possible to make it against Judge 
Day. He says the attention of the people in the car was called to it. 
He was passing through the cars, and certainly could see but little : 
his observation would be casual only. I wish to call the attention 
of the Committee to the next question, — 

“ Q. (By Mr. King.) —What was the condition and appearance of Judge 
Day during the passage ? ” — 

as if he observed Judge Day all the way from Boston to Barnstable ! 

“ A. —Well, I thought lie was feeling very good. I thought that he must 
be under the influence of liquor.” 

Because he felt good! as if rum is the only thing that will make a 
man feel 2 ,ood. Let me now call vour attention to the bottom of the 
271st page : — 

“ Q. — You say you saw Judge Day drink any thing he poured from the 
bottle? A. —Yes, sir. 

“ Q. — How many times ? More than once ? A. —No, sir. 

“ Q. —And you can’t tell how long you were in the car, but think you were 
there only a few moments ? A. —I think I was only passing through the car.” 

That is what he says about it. That’s the whole of it; and all there 
is in his testimony is, he passed through the car, and, when he was 
passing through, Judge Day was doing what he attempts to describe, 

_he was simply uncorking that bottle of lager ; and that is the whole 

of it. Well, now, is there any evidence of intoxication? There must 
have been people in the car who knew Judge Day, and knew these 
women. He was with people belonging to the Cape; and, if there 
had been any thing there indicating that he was intoxicated, they cer¬ 
tainly would have had the witnesses here to show it. They would not 
have failed to bring them, after making every endeavor possible to get 
testimony to establish their allegations ; and, if Judge Day had acted 
as an intoxicated man, they could have gotten somebody besides this 
exao-o-erator Marston to testify to it. It takes three hours to go from 
Boston to Barnstable ; and Judge Day was among his neighbors and 
acquaintances, among men familiar with him, and men of chniactci. 
But they have not brought one of them hcie that will c^en make a 
suoyestion that there was any thing in his demeanor which indicated 
any thing other than sobriety. Joshua M. Howes could not have 
known the particulars. According to his testimony, he was simply 


622 


HEARING — JOSEPH M. DAY. 


[April 


passing through the cars ; and I submit, Marston’s statement is a 
gross exaggeration ; and all that his testimon} T fairly amounts to 
is, as I have said, that he saw him take this bottle of lager beer, 
uncork it, and drink a small portion of it, and nothing more. Judge 
Day makes his statement, which I will read. The question was 
asked,— 

“ Now, judge, we will take the case of the allegation of excessive indul- 
« gence in drink upon the cars from Boston to the Cape, where you were seen 
with two ladies. I won’t ask you to state the names of the ladies; but you 
may state, in reference to that matter; whatever you have to say. That is found 
on pp. 156 and 157, pp. 159 and 161, pp. 162 and 163. A. —Well, sir, upon that 
occasion I met in the cars, or saw in the cars, a lady that I was acquainted 
with, with whose father and whose uncle I was acquainted; and I may say that 
both the father and the uncle were amongst the most respectable of our Cape 
Cod citizens. The ladies were sitting on a seat together. The next seat to 
them was turned back, for one of them had her little daughter with her. The 
one I was acquainted with introduced me to the other one; and, there being 
plenty of room, I passed into the seat that w r as turned back, and sat directly 
opposite the lady I was introduced to. I observed something that struck me as 
being singular or peculiar in her appearance. She did not seem to notice wdiat 
was going on, or to notice when I spoke to her; but I had never seen her 
before, and I supposed it was simply a personal peculiarity. By and by she 
put her hand down to her satchel, and took out a bottle of lager beer ; and she 
said to me, ‘ Judge Day, will you have a glass of lager,—just a glass of 
lager?’ I said, ‘Thank you, yes.’ She was proceeding to open it, when I 
said, ‘ Let me open it for you.’ I took the bottle, opened it, took a silver cup 
which she had, filled it, and passed it to her; I filled it again, and passed it to 
the other lady; I filled it again, and drank it myself. And that was every drop 
that was drunk while I was on that car. But in, it seemed to me, less than 
five minutes, the lady that sat opposite to me was evidently intoxicated. At 
that time, as I said, I knew nothing whatever of her habits, —never had heard 
of them. She moved down somewhat in her seat, put her feet across between 
the seats to the railing, to the bar under the seat upon which I was sitting, and 
between my legs and the passage-way. In moving her body down, her knees 
came nearly across the whole distance between those two seats; and went off 
into a drunken doze. The young lady who was sitting upon the same seat with 
her seemed to cast a quick glance at me, as if to see whether I noticed the con¬ 
dition of her sister-in-law; and I tried as hard as I could to make her think I 
did not. I sat and talked with her, taking no notice whatever of the other 
lady. It was impossible for me to get out without demonstrating to that whole 
car full of passengers that that woman was intoxicated. I did not know what 
to do excepting to do as I did,—sit there until she came out of the sleep, 
raised herself upon the seat, when I got up, and went out. That is the whole 
of that transaction.” 

That is a full and fair statement of this affair. Here is an at¬ 
tempt to blast Judge Day’s reputation. This allegation is wholly 
without any foundation., Any gentleman might have been overtaken 
in the same way; and all I can say about it is, if any one is, and his 
conduct is as proper as that of Judge Day upon this occasion, he will 


1882.] 


SENATE — No. 150. 


623 


have no cause to reproach himself, and ought not to be reproached 
by an}- one. He showed upon that occasion the instincts of the true 
gentleman, and behaved in a becoming and proper manner; and any 
other course that can be imagined would be open to censure. 

The next allegation of intoxication is in 1878 near Cohasset Nar¬ 
rows. It will be found that that is equally without any foundation. 
Last year, it is clear that it was put as happening in 1879 ; but they 
have changed it now, and say they don’t rely on 1879, but they rely on 
1878 when it was proved to a demonstration that there was no foun¬ 
dation for the charge of 1879. They change their position, and say 
now it was in 1878. What is the charge? The charge is this: it is 
made by Augustus S. Messer. He is the only witness, and he says 
this : that he passed from one car to the other, and that, as he was pass¬ 
ing along, Judge Day was standing on the platform of the car urinat¬ 
ing, and that he asked him if he had been over to Parker’s, and that 
he thought he was intoxicated. He says he thinks it was in the day¬ 
time, when the evidence comes out clear and positive that it was in 
the evening. It was when Judge Day was going down to hold court 
at Falmouth in November, and when the cars left Cohasset Narrows 
for Falmouth, at from 6.12 to 6.17 p.m. I needn’t call the attention 
of the Committee to the fact that at that season of the year the sun 
sets before five o’clock, and at this time it was more than an hour 
after sundown. A man that has not recollection enough about this 
transaction to know whether it was in the day or night time, has not 
a recollection in regard to it that entitles his testimony to any con¬ 
sideration at all, because in the daytime it might be one thing, and 
in the evening another; and that is all that he says about it. 

He was in those cars. Does he say that he saw him in the cars? 
Does he say that he saw any indications about him that he was in¬ 
toxicated in the cars? Is any person brought here who says any 
thing in favor of Messer’s position? I say this much about that con¬ 
ductor : if his testimony is true, he ought to be removed at once ; and, 
if it is false, he ought not to fare much better. He is the man who 
says, that, while the cars were in motion, he saw an intoxicated man 
on the platform, and did not direct him to go into the cars, or look 
out for him. It would be little short of manslaughter for a conductor 
to leave an intoxicated person in such a position if he were to fall off 
the train, and be killed. He should have said to him, This is an un¬ 
safe position to be in ; but nothing of that kind was said : and Mes¬ 
ser’s action shows conclusively, that his testimony in regard to this 
matter is an afterthought given in furtherance of the wishes of those 
people on Cape Cod who have been striving to find some evidence 
going to sustain the charge against Judge Day as to the improper 
use of intoxicating liquors. The conductor was merely passing along 





624 


HEARING —JOSEPH M. DAY. 


[April, 


from one car to another. What did he mean when he asked him if 
he had been at Parker’s? He said Judge Day was confused. Judge 
Day says he was. He never associated the name of Parker’s with 
any place except Parker’s Hotel on School Street, where he has 
stopped, when in the city, for the last twenty-five years. Did he 
mean that as an insult to him? — as an imputation that he had been 
drinking? If he did, it was an outrage, which I submit no road would 
tolerate for a moment. If it was intended (as we are bound to as¬ 
sume it was) as an honest and gentlemanly interrogatory, then it has 
no significance ; and to give any significance to it, is to impeach Mr. 
Messer’s character, shows him to be an unfit person to be a conductor. 
If he was as discourteous as that, he certainly was not fit for a posi¬ 
tion of that kind ; and I say it is fair to assume that it was a question 
put honesty. And will this Committee say that there is any reliable 
evidence of intoxication? Judge Day says he was there on the plat¬ 
form. Why? Because the urinal in the smoking-car is usually so 
filthy that no gentleman ever wants to go into it; and to go into the 
other car, and enter the saloon before all the other passengers, he dis¬ 
liked to do. He was not so lost to all sensibility that he should like 
to do that. Had he been intoxicated, the passengers on that train 
would have known it. And then what do we have? We have the 
testimony of Mrs. Davis at the hotel where he stopped that night, 
saying that he was perfectly sober. We have the testimony of Miss 
Davis, the daughter, she saying that he spent the evening there, and 
that he was perfectly sober; and you have the testimony of Eugene 
E. C. Swift, the hackman. He says he was perfectly sober. He was 
there to attend to his official duty ; and, if in an intoxicated condition, 
he would have attracted attention at once. I say that is mere con¬ 
jecture on the part of Messer, and that it is met by positive and 
overwhelming testimony. We have the positive testimony of three 
witnesses to his sobriety on that occasion, and his sobriety is estab¬ 
lished as clearly as it is possible for any fact to be established by 
evidence. Upon the evidence he was sober. One man conjectures 
that he may have been intoxicated, but three come and swear posi¬ 
tively that he was sober. 

The next charge, I believe, does not come under any particular 
specification. It is the platform case. It is the testimony of Charles 
H. Nye, not the testimony of any of the neighbors, or anybody that 
had business with Judge Da}’, or conversation with him ; and what is 
his testimony? Because this is the strongest case they have. They 
bring in the best witnesses when undertaking to show that Judge 
Day uses intoxicating drinks to excess. Charles H. Nye says, 
p. 112, “ Two years ago I saw Judge Day on the platform at Cohas- 
set Narrows,”—and that was not the time when Judge Day was 


1882.] 


SENATE— No. 150. 


625 


going down to hold court in 1878. It was two years ago, he says ; 
so it was not in 1878. And what does he say in regard to it? 

Mr. Wadleigh. I presume you refer to the testimony of Mr. 
Hopkins ? 

Mr. Thompson. Oh, no! I have got Hopkins in my mind. I 
will treat Hopkins in a distinct chapter. 

Mr. Wadleigh. I supposed you would take a chapter. 

Mr. Thompson. I am not now on Hopkins. I am speaking with 
regard to Mr. Nye. He says it was on the platform, after dark, not 
in the cars, but on the platform at Cohasset Narrows, where the 
trains branch off; and one goes down to Falmouth, and the other 
train goes down the Cape. And Mr. Nye was there waiting, how 
long he does not know. He says that he met Judge Day walking 
along in the evening ; but he does not tell you how near he went to 
him. And he says he thinks Judge Day was intoxicated ; and the 
reasons he gives for thinking so are perfectly ludicrous. What does 
he say about it? He said he was flushed in the face. Well, Judge 
Day is not responsible for that. If Judge Day’s florid countenance 
is evidence of intoxication, he can doubtless be shown to have been 
intoxicated from his birth up to the present time ; for he has always 
had that symptom. But there are men that do not drink rum that 
have red faces ; and you must have known the strongest temperance 
men to have not only the red face, but blue veins and patches which 
seem to indicate a little excess in the direction of drink. When it 
comes to this, that a man of florid complexion is taken to be a 
drunkard, it is pretty hard for that class of men. He says in 
another place, — 

“ q. — Did you corae to the conclusion that he was exhilarated from the 
manner of his walk? A. —And looks? 

“ Q. —Walk and looks ? A. —Yes, sir. 

“ Q. (By Mr. Bukdett.) — What did you notice in his looks? A. —He was 
flushed in the face.” 

Now, let us see how he walked. 

% 

“ Q. — Was there any other symptom, if you want to describe, showing 
Judge Day’s exhilaration ? A. — I don’t think of any thing, sir. 

“ Q. (By the Chairman.) —You drew this conclusion from his manner of 
walking. How did he walk ? A. — Well, sir, he walked well enough. 

“ q —That wasn’t the question I asked you. I asked you how he walked? 
A. — There was no reel or stagger to it: he walked directly on. I saw a differ¬ 
ent movement to the man than that of Judge Day. I thought there was some¬ 
thing the matter, and that’s the conclusion I came to.” 

And then lie was asked if he knew Judge Day was lame. He didn’t 
know that. Then he was asked if he knew that Judge Day, by rea- 


626 


HEARING —JOSEPH M. DAY. 


[April, 


son of being in the service, had suffered from that time to this ; and 
he did not know that Judge Day had an ailment that the physicians 
call s} T novitis (the drying-up of the lubricating substance of the 
joints), and that he has walked with a cane, and has been obliged 
to ever since he was in the service ; and Mr. N}’e came here with¬ 
out knowledge enough of Judge Day to know how he ordinarily 
walks, and undertakes to say that he thinks he was intoxicated, 
because he walked as he did. He didn’t reel or stagger, but walked 
straight forward ; and he says that he did notice, though, that he car¬ 
ried a cane. This is the whole evidence. If they had an}^ stronger 
evidence, they would produce it. It is mere conjecture of Mr. Nye, 
and they have no witness to confirm it. It stands upon his conjec¬ 
ture alone. I sa} T , that evidence is not entitled to a moment’s con¬ 
sideration in establishing such a fact as they undertake to establish 
here. Is a man’s reputation for sobriety to be affected by such evi¬ 
dence as that? You have Judge Day’s emphatic denial; but that is 
not needed, for no case is made out calling even for a denial. 

The next charge is, that, at Davis’s hotel he was intoxicated in 
1879. I think there is not any other charge in the specifications, 
but the one Mr. Bursley testifies to ; but, before discussing the allega¬ 
tion as to intoxication at Davis’s hotel, I will consider the evidence of 
Henry B. Hopkins, who lives in Chelsea, and is a travelling salesman. 
He is called to impeach J udge Day’s character for sobriety. Let us see 
what this man knows with regard to it, see if his testimony amounts 
to any thing at all. He says it was between Wareham and Yar¬ 
mouth, and that he was going down in the cars upon the Cape, was 
going down to Yarmouth, and somewhere between Wareham and 
Yarmouth he saw Judge Day, and that he came to the conclusion 
that Judge Da}^ was intoxicated. He sa}’s he took a seat in the cars 
behind Judge Day some little way, and that Judge Day got up from 
his seat, and passed out of the car, was gone some five minutes, 
and returned, and took his seat; that Judge Day didn’t speak a 
word to any one, and that he didn’t speak to Judge Da}^; and what 
he noticed, he said, was his restlessness in his seat; and he thought, 
when he walked through the cars, he didn’t walk as uprightly as 
usual. That is all he says with regard to this matter. Is such evi¬ 
dence sufficient to impeach a man’s reputation for sobriety? Are 
you to rely on this Henry B. Hopkins, — this man who only saw him 
casually in the cars, saw him when he passed out and back, and 
never exchanged a word with him, or heard him speak? He says 
Judge Day did not walk as upright as he thought he ought to. 
Now, Judge Day says, what you must know to be true, that, when 
«he passes through the cars when they are in motion, he uses his cane, 
and holds on to the seats as he passes along. And Mr. Hopkins 


1882.] 


SENATE —No. 150. 


627 


says he didn’t walk as uprightly as he thought he ought to. Why, isn’t 
it pretty difficult to walk in the cars when the}’ are in motion? Don’t 
people get thrown about? and don’t you have to, as the sailors say, 
have your sea-legs on when walking through the cars when they are 
in motion? Such evidence ought not to weigh one particle against 
Judge Day. He is one of the runners on Cape Cod, and evidently 
desires to aid the petitioners, and is manifestly most unfair. He 
says Judge Day did not walk upright as he generally does ; and, when 
I asked him if he ever saw him walk through the cars when in motion, 
he said he did not remember that he ever saw him walk before in the 
cars. And, when he undertakes to make a comparison with regard to 
his manner of walking then and at other times, it shows that he is 
testifying unfairly, because he does not remember that he ever saw 
him walk in the cars before. 

I now come to the testimony of Mr. David Bursley ; and he sa} r s, 
at Falmouth, at Davis’s hotel, sometime in June, 1879, he saw Judge 
Day intoxicated ; and his testimon} r will be found on p. 370. I will 
not discuss the question whether David Bursley’s testimony is right¬ 
fully or w r rongfully admitted. It is admitted, and his testimony is 
in the case, and as such I propose to consider it. Mr. Bursley sa}’s 
that he was down at Falmouth, at Davis’s hotel, in June, 1879 ; 
that Judge Day came up to the hotel in a state of intoxication, 
and made use of expressions that it is not necessary for me to repeat. 
With regard to Bursley’s testimony, I say, in the first place, that it is 
contradicted b} T testimony that is most reliable and conclusive, testi¬ 
mony of persons not prejudiced, having no interest in these proceed¬ 
ings at all. Mrs. Davis says that she was there; she remembers 
when David Bursley came there, — that he came at about dinner¬ 
time, and went away next morning immediately after breakfast,— 
and that Judge Day was not there during that time ; that she knows 
that he was not; that he could not have been there in the house with¬ 
out her knowing of it, for she had charge of the rooms; and she 
describes how they were occupied. The daughter was there, and she 
saj’s it is impossible for him to have been there without her knowing 
it; and I submit that you have this fact,— it is negative testimony, 
but it is that kind of negative which is the strongest kind of testi- 
mony, — that no other person saw him at Falmouth at that time. 
Judge Day says he was not there, and never was there at any other 
time, except on one occasion, and that was quite recently, except 
when there to hold his term of court in November. And this hap¬ 
pened to be put on a day when there was an association of churches 
meeting, at Falmouth, of the Orthodox clergy and laymen ; and I ask 
you, if Judge Day had been walking through the streets of Fal¬ 
mouth intoxicated, if everybody would not have known it? The 


628 


HEARING —JOSEPH M. DAY. 


[April, 


news would have flashed through Falmouth instantly. And you will 
bear in mind this fact, that a drunken man always shows himself 
most conspicuously. You can seldom conceal a drunken man. If 
he had been intoxicated, he would probably have presented himself 
as a delegate from the Orthodox church at Barnstable. 

Mr. Wadleigh. It didn’t run in that direction. 

Mr. Thompson. Now, I say this: that it is the strongest testi¬ 
mony that can be had, that he was not there, that no person saw him 
there. He must have gone down there in the cars. The people of 
Barnstable were going down in the cars. He must have returned in 
the cars, and been seen by the people if there. They cannot bring 
a single other witness who will say that he was there ; and I ask 
if the Committee will assume that he was there, simply upon the 
testimony of David Bursley, who at least is a strongly biassed witness 
— if they will assume it against the testimony of Mrs. Davis and her 
daughter, and the fact that no person saw him in that town at that 
time? Wh} 1- , if he had been in that town, it would have been proved 
beyond all controversy. He was not there, I submit, at all; and I 
may as well at this point make a few suggestions with regard to the 
deposition of David Bursley: although it is testimony in the case, it 
comes in as testimony under circumstances entitling it to the least 
possible weight. There was no cross-examination of the witness; 
the deposition was not read over to him so that he could make any 
corrections in it that he desired; and it was a deposition given by a 
party who was most prejudiced against Judge Da} r , and who w r as 
ready to risk his life to vent his malice. He knew well his condition, 
that he was not in a state of health to give his testimony at all. It 
must have been given with the understanding between the attorney 
from that district, and Mr. Bursley, that he should give his testimony 
without regard to its consequence to his health. He was willing to 
improve the opportunity to injure Judge Day at risk of his life. 
The certificate of the physician, read by the Chairman yesterday, 
sa} T s distinctly if he had been consulted he would not have consented 
to its being taken at all. These people knew his condition ; and they 
knew that Mr. Bursley was willing to risk his health, or life even, for 
an opportunity to stab Judge Day. It was the ruling passion strong 
in death. I don’t think that the uncorroborated testimony of a 
man under those circumstances ought to have any great w'eight; 
but when the testimony is contradicted by two reliable witnesses, and 
contradicted by all the probabilities of the case, then it is not entitled 
to a single moment’s consideration. I ought not to dwell longer 
upon this part of the case. Judge Day’s character as a man of 
sobriety is perfectly established. This book contains the testimony 
of the most reliable and responsible men upon Cape Cod, whose 


1882.] 


SENATE —No. 150. 


629 


names I repeated the other da} 7 when I was calling the attention of 
the Committee to his character as a judge, and the kind manner in 
which he performed his duties ; and there are other witnesses who 
testified particularly as to his habits, who didn’t testify as to his con¬ 
duct in court, that I have not named. I will not take up the time in 
going through with them now; but they are the immediate neighbors, 
they are the clergymen and business men of the vicinity ; they would 
have observed in him any indications of want of sobriety, if they ex¬ 
isted. The testimony is full and complete. There never was a more 
beggarly attempt than has been made here to injure a man’s reputa¬ 
tion. Mr. Chairman, and gentlemen of the Committee, this is an 
old slander. The Son of man, the perfect being, was charged when 
on earth with being a wine-bibber. It is a slander more than eigh¬ 
teen centuries old ; and when, on the day of Pentecost, the Spirit of 
the Lord was poured out, and men were acting under its special 
guidance and direction, and doing nothing but that which was per¬ 
fectly right, it was then that the Messers and Bursleys were 
mocking them, and saying, these men are filled with new wine. 
Oh, think of it! It is the kind of slander that good men have 
always been subjected to; it is the most common thing to attack 
temperance men, and say that they are men who get intoxicated: 
but when a man actually does drink, and get drunk, his apologists 
are legion. I meant to have referred, in this connection, to the tes¬ 
timony of Jonathan Higgins. He says he thinks he has seen Judge 
Day when he was sometimes depressed, and sometimes apparently 
elated by the use of liquor, —as he thought, —but has never seen him 
intoxicated. Ah ! I think, that, when he thought he smelt something 
intoxicating, it was the office that he was scenting: he wanted to get 
the position, and his testimony is to be taken with a great deal of al¬ 
lowance. He says he did once during his term of fifteen years see 
Judge Day take whiskey from a vial; but, conscience-stricken, he 
says that the judge was in pain, suffering from pain. Once in fifteen 
years he has been known to take a little whiskey as a medicine ; and 
it is most unkind, unjust, and unwarranted on his part, and the part 
of the petitioners, to undertake to injure a man’s reputation in a par¬ 
ticular in which it stands so well. Judge Day is a temperate man ; 
and, if I wanted to establish it beyond all controversy, I would take 
the testimony of this case. For thirty years his character has been 
under review ; and they cannot find a man among his neighbors and 
acquaintances, they cannot find a man among his associates, they 
cannot find a man with wliom he has evei done business, that can sa} 
auo-ht ao-ainst him. His character is beyond reproach, —the darts of 

malice cannot affect it. 

Adjourned till 2.30 p.m., same day. 


630 


HEARING —JOSEPH M. DAY. 


[April, 


NINETEENTH HEARING. 

Green Room, State House, Boston, 
Wednesday, April 5, 1882. 

The Committee resumed the hearing at 2.30 p.m., Senator Jen¬ 
nings presiding. 

Mr. Thompson, continuing the argument, said, — 

Mr. Chairman and Gentlemen, — I now come to the ninth alle¬ 
gation of the petitioners, which is one in regard to federal relations, 
and is as follows : — 

“ That in 1861, while judge of probate, said Day was appointed 

COLLECTOR OF CUSTOMS FOR THE DISTRICT OF BARNSTABLE, WITH THE 
UNDERSTANDING THAT HE WOULD RESIGN THE OFFICE OF JUDGE, BUT 
THAT HE DID NOT SO RESIGN ; THAT, WHILE HOLDING BOTH SAID 
OFFICES, HE CORRUPTLY DEMANDED AND RECEIVED FROM OFFICERS, 
RECOMMENDED FOR APPOINTMENT BY HIM AS SUCH COLLECTOR, SUMS 
VARYING FROM THIRTY-FIVE DOLLARS TO ONE HUNDRED DOLLARS EACH, 
AMOUNTING IN ALL TO ABOUT FIFTEEN HUNDRED DOLLARS | THAT, AFTER 
HOLDING BOTH SAID OFFICES FOR SOME MONTHS, HE RESIGNED SAID 
COLLECTORSHIP FOR A PECUNIARY CONSIDERATION, AND WITH THE 
UNDERSTANDING THAT SAID OFFICIALS ALREADY THEN APPOINTED ON 
HIS RECOMMENDATION SHOULD NOT BE DISTURBED DURING THEIR 
TERMS OF OFFICE.” 

Judge Da}^ was in 1861, “while judge of probate, appointed col¬ 
lector of customs for the district of Barnstable,”—there is no 
question about that, — but not with any particular understanding in 
reference to resigning the office of judge, but with the purpose to re¬ 
sign ; and he did resign, or certainly supposed that he had resigned: 
so that there is not any material issue between us as to that, because 
he understood that he was to resign ; and, of course, everybody else 
would understand that he would not continue for any considerable 
lensrth of time to hold both offices. 

But the charge is that he did not so resign. That was and is sub¬ 
stantially incorrect. He did early send in his resignation to Gov. 
Andrew, and Gov. Andrew nominated his successor for that office. 
It is clear from the papers in the case that he did so at an early date ; 
and there is not, in regard to that matter, any cause of complaint. 

The allegation “ that, while holding both said offices, he corruptly 


1882.] 


SENATE —No. 150. 


631 




demanded and received from officers, recommended for appointment 
by him as such collector, sums varying from thirty-five dollars to one 
hundred dollars each, amounting in all to about fifteen hundred dol¬ 
lars,” we do join issue here, and we say that it is absolutely false. 
It has no foundation in fact. He never demanded a dollar of any 
man, either corruptly or otherwise. He made no demand ; but he did 
do what was perfectly right and proper, —solicited political contri¬ 
butions — nothing more — from men he supposed would be pleased 
to make contributions towards party expenses, which were legiti¬ 
mate and proper in the conduct of political campaigns. I think I 
need not speak in this presence with regard to the expenses which 
are necessary and proper in the management of a campaign. For 
the count}' of Barnstable, in a presidential campaign, I think that 
the sums named here would be very moderate indeed. I ask mem¬ 
bers of this Committee, who must have experience in this matter, 
and, therefore, can judge, if in a presidential campaign a thousand 
dollars is a large sum to expend, not for purposes of corruption, but 
for legitimate campaign expenses. You must carry on a campaign 
with vigor. You must have political meetings, every one of which 
is attended with very considerable expense. I think I may say 
that a political meeting that does not cost more than a hundred dollars 
is an economical one. You must have a band to start enthusiasm. 
There are more men converted by music than by reason, two to one ; 
and men managing campaigns understand the processes by which the 
public are moved, and they use the proper means ; and to say that 
money expended in that way is expended corruptly, is saying that 
which is untrue, and is a reflection upon the patriotic men of the 
parties who conduct such campaigns, and is unfounded. For one, I 
have no sympathy for men that shirk in political campaigns. I have 
no sympathy with party men who are not willing to help meet party 
expenses. They are not entitled to consideration. I say the men to 
be trusted are the active, vigorous, honest, high-minded, straightfor¬ 
ward men, the fighting men. They are to be trusted rather than 
the skulkers, who are usually the first to press their claims for 
recognition. 

The whole evidence shows that Judge Day did nothing but what 
was right and proper, under the circumstances; and there is not a 
man who, taking his testimony and giving it any fair construction, 
can see any thing improper in the action of Judge Day in this matter. 
He says, that, in his judgment, something like seven hundred dollars 
were collected ; and nobody says there was more, and nobody but 
Judge Day says there was that amount collected. He says he was 
out of pocket, according to the best of his recollection, some three 
hundred dollars, after he had received all the contributions which the 


I 


HEARING —JOSEPH M. DAY. 


632 


[April, 


friends of the cause liad made to him. Does anybody say r that there 
was more contributed ? 

That sum is a very small sum indeed; and there is nothing in the 
amount, or in the manner of payment, which indicates any thing dis¬ 
honest, or any thing which is corrupt, or which, in any sense, can 
be said to indicate a corrupt purpose on the part of Judge Day r . 

You have had some witnesses before you who have been asked 
with regard to matters that took place twenty-one years ago, and you 
know how poor the recollection of men must necessarily be in regard 
to events that transpired so long ago as that. It is impossible for 
a man to recollect transactions of twenty-one years ago. No man can 
feel an} T certainty at all that his recollection is accurate, when the 
subject-matter has not been called to mind for that length of time, 
and the witnesses in relation to this matter have not had their recol¬ 
lection refreshed for more than twenty y'ears. 

I propose briefly to review the testimony of the parties who have 
been called upon this subject in order to show that there was no 
corruption. 

Let me take the first instance, the testimony of Dr. Samuel H. 
Gould. It will be found, I think, upon p. 193 of the printed report. 
Dr. Gould says that he was one of the hospital physicians, and the 
Chairman put the question to him as follows : — 

“ Q .—Did you ever pay him for your appointment as hospital physician? 
A. —No, sir! no, sir!” 

He says it with an emphasis which shows the depth of his con¬ 
viction, and an indignant feeling that such a suggestion should ever 
have been made. He was asked wflth regard to whether he did pay r 
money. He say's, — 

“ I did. I afterwards paid him money; but never, so far, has a word passed 
between us.” 

So it was not at any solicitation of Judge Day. Never a word 
passed between them ; and then the question was asked, “ What was 
it paid for? ” and Dr. Gould answered, saying, — 

“ For what I consider honorable for expenses, my part.” 

He was then asked to state what sum he paid, as nearly as he 
could tell; and the answer was, — 

“ Fifty dollars, perhaps, more or less. That was one payment. Afterwards 
I made another payment. I made his friend’s payments; but I believe he 
wasn’t collector at the time, and I don’t know as he was at the time of the first 
payment. It was long afterwards — one payment I made, — at the time he was 
going to the war.” 

I won’t go through with all his testimony. He says, — 


1882.] 


SENATE —No. 150. 


683 


“I distinctly said I gave it as a gratuity to him: I want that distinctly 
understood, that it was a gratuity on my part.” 

And .then, it was not asked for. 

“Q. — Do you remember what was said at the time? A. —I don’t re¬ 
member.” 

But he sa 3 7 s, speaking of Judge Day, — 

“He was a gentleman, and always expressed himself in a gentlemanly man¬ 
ner; but really I don’t remember a word; but I know it was high-spirited; 
very appropriate. I don’t think he ever considered he was bribing me, or I him. 

“ Q. —Did you make any concealment of the fact that you made Judge Day a 
present? A. —Never. It has been open, and I have spoken openly about it 
always, —always have since this trouble came on.” 

And he gave a little something to assist in getting Judge Day an 
outfit to the war. Is Dr. Gould a man to be bribed ? He scouts at 
the idea of a demand being made upon him, and he is one of the men 
the}” bring to substantiate this charge of corruption ; and they bring 
the best witnesses the} r can find. 

The next witness was Dr. George W. Doane. He was another 
hospital physician; and his testimony, I think, will be found on p. 
202. I will call } r our attention briefly to it. He states that he paid 
something, but he cannot tell the exact amount. The question was 
put to him, “ State, to the best of your recollection ; ” and his answer 
was, “ It is a very difficult thing for me to sa}\ It has been twenty- 
one years. I — perhaps I have mentioned it, how large — At 
times I have paid some one hundred dollars: I presume I have 
mentioned that, that I have paid for purposes of that kind.” But 
he does not recollect. And then he was asked, “ Why did you pay 
it?” and the answer was, “It was generally understood that he 
should be paid a certain sum of money.” He does not say it was 
ever suggested by Judge Day; and that is the strongest statement 
he makes with regard to it. 

And then, the next question which I will call attention to is on p. 
204, when he was asked by the Chairman what he paid the money 
for: — 

“A. —I don’t know that I paid it altogether for that. 

“ Q, —What, then? A. — I considered that part of the business in getting 
the office. I don’t know how much went to Judge Day, and how much went 
to carry on the campaign. I understood the rest paid, and I paid my part. I 
could not tell the amount or time when it was paid, as it is twenty-one years 
since; and it is impossible for me to do it.” 

« 

And he says, on p. 205, in answer to the question put on his cross 
examination, — 

“ You don’t mean to say that you ever paid any money as a bribe to obtain 
that office? A. —No, sir: I njsver did, and was never approached.” 



634 


HEARING — JOSEPH M. DAY. 


[April, 


Never approached. 

Then come the following questions and answers: — 

“ Q. —What you paid was as a general political contribution, some of it you 
think went to Judge Day, and some for political expenses, but in what propor¬ 
tions you have no idea ? A. — Yes, sir. 

“ Q. (By Mr. Bruce.) — # Hacl you received your appointment before it had 
been communicated to you? or were you communicated with with a view to 
paying Judge Day any thing, providing the position was given to you? A. — 
I had no knowledge of any such understanding. I was never approached by 
Judge Day on the subject. 

“ Q. — I ask whether it was communicated to you by anybody before you 
received the appointment, that, in case it was given to you, that you should pay 
Judge Day any thing? A. —No, sir: I have no recollection of any thing of 
that kind. 

“ Q. — Now, when you paid that fifty dollars in October, did you mean to 
have it understood that any of that was to go for campaign purposes? A. — In 
the first place, I haven’t stated on oath that it was fifty dollars — 

“ Q. — Whatever the sum was ? A. — I couldn’t say. 

“ Q. —Do you mean that any part of that money was contributed by you at 
the time you passed it over, to whatever person you gave it, for campaign pur¬ 
poses? A. —I had an understanding that it was for campaign purposes. 

“ Q. (By Mr. Hill.) — What campaign purposes? and what campaign ? A. 
— There had been expenses incurred; and, as in some cases, the accounts of the 
expenses didn’t come in till afterwards. I didn’t look into that matter particu¬ 
larly. I don’t know what expenses there were, or that others had gone to. I 
know there is a great deal of expense every time we change an administration.” 

I think it may be said that there was a good deal of expense in the 
Lincoln campaign when the administration was changed from a Demo¬ 
cratic to a Republican administration ; and, if anybody remembers 
that campaign, they know it was carried on at great expense. They 
know money was poured out like water. They remember the “ Wide- 
Awakes,” and at what expense the} 7 were equipped. There was not 
enough contributed in the county of Barnstable to equip a good-sized 
Wide-Awake Company. That was one of the greatest political cam¬ 
paigns ever fought in this country, and one of the most expensive. 
Seven or eight hundred dollars for the county of Barnstable ! why, it 
is a mere nominal sum ! It was not as easy to achieve a Republican 
success then as now. It was the very turning-point in the battle; 
and men concerned in politics twenty-two and twenty-three years ago 
will understand what vigor was thrown into the campaign, and what 
expenses were necessary. I call your attention to another question : 
“ Don’t you know that the campaign expenses of 1860 were pretty 
heavy? that it was a very vigorous campaign? A. — I suppose they 
were.” Why, there is a witness which they call here to support the 
charge that Judge Day corruptly demanded money! That is the 
allegation, but there is not any thing in Dr. Doane’s evidence to sus¬ 
tain that charge. 


1882.] 


SENATE — No. 150. 


635 


Let me take the next man which the}’ produce to show this corrup¬ 
tion, because, bear in mind, they get the best witnesses they can. 
They do not call the numerous persons who received appointments by 
his recommendation, but call those most favorable to the petitioners. 

I will now take Valentine Doane, jun., — and he is a fair specimen 
of a good many custom-house officers. He said he received an 
appointment as aid to the revenue, but the duties of that office he 
never understood. lie stated what the burdens of the office were ; 
viz., to sign receipts once a quarter, — an important duty, for which 
a rich reward was certainly deserved. That office was undoubtedly 
a political office given for the purpose of enabling the incumbent to 
work in the party, and to apply himself to the party work, and 
get the pay out of the government. That is done a good deal 
now, and always has been, and always will be. I do not make 
any special charges against the Republicans, because I know they 
are not sinners above all men that dwelt in Jerusalem. Valentine 
Doane, jun., is a good specimen of an officer ; and he says, — 

“ Q- — Whether or not, after your appointment, you had any conversation 
with Judge Day with reference to making any payments? A. — I would not 
say that I had any conversation with Judge Day with reference to making the 
payment. 

“ Q. —Did you have any conversation with him? A. — I had conversation 
with Judge Day several times. 

“ Q. —About your appointment? A. —Well, I don’t think I ever had any 
conversation with Judge Day about my appointment. It was done through 
another party. 

“ Q. — Who was the other party ? A. — David Bursley. 

“ Q. —Whether or not you had some conversation with him relative to an 
assessment or payment? A. — I think at one time at the court-house there 
was some conversation with Judge Day; and, among other things, the matter 
of the large expense was suggested, in obtaining the office, the collectorship. 
This was in a general way. There are no particular facts that I can call to 
mind in reference to it. There was quite an expense incurred. 

“ Q. —Whether or not you paid any money? A. —I don’t seem to remem¬ 
ber: I never paid Judge Day a dollar in my life.” 

And the question next put to him was, — 

“How much, according to your best judgment? A. —It strikes me, the 
first quarter I received fifty dollars of the one hundred. That is my memory 
after a lapse of twenty years. I wouldn’t say that was a fact.” 

‘ And then the next question I will call your attention to is this : — 

“ q. — And you understood you were under no obligation to relinquish your 
salary, or any part of it ? A. —I repeat, I had never had any demand made on 
me for payment.” 

Then the question was asked, — 

“ q. — You understood, at the time it was stopped, there was no obligation 


HEARING —JOSEPH M. DAY. 


636 


[April, 


on your part to relinquish any part of the quarter’s pay ? A. — I didn’t under¬ 
stand that there was, sir. 

“ Q. —So you did that voluntarily at the time? A. —Certainly. 

“ Q. — As your own free will ? A. — Certainly. 

“ Q. — And the particular details of the transaction you have no recollection 
of ? A. — I haven’t. 

“ Q. — Whether the whole amount was paid you, and you paid back ? A. — 
I can say it was simply a transaction of a remittance, so much less my assess¬ 
ment. 

“ Q.—After the conversation there, that was the result of it? A. — Yes, 
sir. 

“ Q. —You didn’t understand that you were paying for any bribe ? A. — 
Not at all, sir. 

“ Q. — You didn’t ? A. — No: couldn’t bribe me any way. 

“ Q. — Did you understand that you were trying to bribe Judge Day ? A. — 
Not by any means. I don’t know that Judge Day ever received a dollar of that 
sum. 

“ Q .—Did you take it as being a bribe to Judge Day? A. —Not by any 
means.” 

And that is the man, and these the three men, by whom they 
attempt to show that Judge Day has corruptly demanded money. 
Why, these men scout the idea ! Corruptly demanded ! He mildly 
solicited assistance to bear the burdens of the campaign, and I say 
he was justified in doing it; and the action of those men who con¬ 
tributed was honorable, commendable. 

Now, let us take the next witness. His evidence will be found on 
p. 360, — Charles G. Rodman. He was the man who had the posi¬ 
tion of mate on the light-boat. He sa} r s he had no conversation with 
Judge Day at all with regard to his appointment, — not a word. He 
is the man appointed, as he says, on somebody’s else recommenda¬ 
tion,— on the recommendation of Danforth S. Steele. But what his 
testimony amounts to is simply this : he went to Danforth S. Steele, 
and gave him a bill for his pay as mate of the light-boat; and he 
received from Danforth S. Steele twenty dollars less than the bill was 
made out for. That is his statement in regard to the matter, and 
that is twenty-one years ago. Mr. Danforth S. Steele never made 
any complaint about it, nor did Charles G. Rodman, and it is not 
probable that they recalled the facts accurately or correctly. They 
speak of a bill presented for services. Nothing of this kind is ever 
done, of course. This man is stating his impression ; but everybody 
can see that he is wrong in regard to the matters of detail. 

But, if he did present a bill, he could not have got a full quarter’s 
salary, because he was appointed on the 1st of June; and the 1st 
payment would come on the first of July, the second on the 1st of 
October, if it was an October payment. Judge Day says it was not 
made by him. He never made a payment in his life in the probate 
office. It was made by the deputy-collector, and this man does not 


1882.] 


SENATE — No. 150. 


637 


recollect about it; but, very likely, Walter Chipman, the deputy-col¬ 
lector, made a suggestion to Danfortli S. Steele to make a contri¬ 
bution— which would be fair — toward the campaign expenses. 
Steele, having the matter substantially in his own charge, acceded 
to it; and that is all there is in this case. There never was any de¬ 
mand made by Judge Day. No demand was made*by any one, and 
there is no pretence at all that any demand was made for this amount 
of money. 

And then comes the testimony 7, of Danforth S. Steele, p. 375 ; and 
he gives you, after twenty-one y r ears, his recollection with regard to 
that matter. 

Mr. Steele was asked, — 

“ Q. — Now, did you collect any money for Mr. Rodman ? A . —Yes, sir. 

“ Q,- —How much did you get for him? A. —I could not say: I don’t 
remember. It was over twenty years ago. 

“ Q. — Now, did you collect for him the full amount to which he was 
entitled ? A. — I could not say that: I didn’t get quite the amount of the bill.” 

The bill may have been wrong or right, or, under some suggestion 
of Mr. Chipman, something may have been left there for campaign 
purposes ; but Mr. Steele does not know any thing about it. 

“ Q. — What was said about it ? A. — I carried a receipted bill, and handed 
it to the judge; and he paid me a little short of the amount of the bill. I 
spoke to him something like this: ‘ This is not quite up to the amount of the 
bill.’ I didn’t have quite the amount of the bill. Well, he said, Mr. Rodman 
knew all about that, and it was all right.” 

He says that is his recollection ; but he must be plainly mistaken, 
because he places the payment, and the circumstances are such as 
clearly to indicate that. And whether it was Judge Day or Mr. Chip- 
man with whom he had the conversation, after twenty-one years, of 
course, he cannot remember ; for he says it is twenty-one years ago, 
and he speaks of the length of time as having an effect upon his rec¬ 
ollection. 

Then follow one or two questions. One of the Committee put the 
question, — 

“Did Mr. Rodman ever express to you any unwillingness to accept less than 
the amount of his bill? A. —No. 

“ Q. — You are positive be never expressed to you any dissent at taking an 
amount less than the amount of the bill ? A. — Never heard a word from him.” 

Then it was asked, — 

“At the time he received this appointment, did you give him to understand 
that there would be something taken out of his salary? A.—No, sir, I never 
did: I didn’t know any thing about it. 


“ Q. (By Mr. Wadleigii.) — Do you mean, when you say ‘it was satisfac- 



638 HEARING — JOSEPH M. DAY. [April, 

tory,’ that he was satisfied that that was all the money you got from Judge Day 
for him? A. — Yes. 

“Q. — That was what you meant ? A. — Yes, sir. 

“ Q. (By Mr. Thayer of the Committee.) — You say there was no talk you 
can remember, whereby Mr. Rodman expressed any dissatisfaction ? A. —He 
didn’t express any dissatisfaction with me. 

“ Q. —Whether it was the amount you got from Judge Day, or whether it 
was what he ought to receive, —either way ? A. — I don’t remember, now, but 
what he was perfectly satisfied with the amount he received, and that he re¬ 
ceived the full amount of me. 

“Mr. Thayer. I so understood you, sir; and I merely wanted to know 
whether you wanted to change it in any way, or not. 

“ Q. (By Mr. Wadleigii. ) — Mr. Steele, can you state that he did not express 
dissatisfaction with the amount, and inquire of you how it happened that he 
didn’t get the full amount of his bill? A. —I cannot tell that he did not, sir; 
hut I tell you to the best of my recollection. 

“ Q. (By Mr. Thompson.) — And the best of your recollection is, that he 
did not express any dissatisfaction, either with the amount received or with 
you? A. —I don’t think he did. 

“ Q. — Or with Judge Day ? A. — I don’t think he did.” 

And that is the witness they call to show that Judge Day corruptly 
demanded pay of parties appointed his recommendation. There 
is only one more witness to whose testimony I have to call the atten¬ 
tion of the Committee, and that is Mr. Gilbert Crocker, who had 
one of these light-boats ; and I think his testimoiw will be found on 
the 355th page. He speaks with regard to his appointment, and 
says, — 

“ I was given to understand — A question was then put by the Chairman : — 

“ Q .—By whom? A. — Mr. Day, who was then collector of customs. I 
was given to understand that it was customary for all holding like positions — 
positions like mine — to leave a sum of money. I did so.” 

He had a suggestion, no doubt, that it was customary to make con¬ 
tributions for political expenses. They had made contributions ; and 
the suggestion was made to him that he should assist in this matter, 
as many of the others had done. That is all there is about it. The 
phraseology, of course, is not at all material. There was not any 
demand made of him at all. The testimony is, — 

“ Q. —And didn’t he say to you the payments were to meet expenses ? A. — 

I don’t understand you, sir. 

“ Q. — Didn’t he say it was to meet certain expenses? A. —That he de¬ 
manded payment of money ? 

“ Q. —Yes. A. —I haven’t any recollection of it. 

“ Q .—Did you ask him anything in regard to what the money was for? 
A. —I didn’t, to my memory. 

“ Q. — How long a conversation did you have in regard to the matter? A. — 
Really, sir, I cannot testify to that: it is twenty-one years ago, I think; and I 
have forgotten it altogether.” 

That is on p. 356. He says he had forgotten it altogether, so that 


1882.] 


SENATE —No. 150. 


639 


the accuracj 7 of his recollection with regard to that matter cannot be 
relied upon. Then he was asked this question : — 

“ Q. —Refresh your recollection, and say if you ever received one dollar from 
Judge Day’s hands for any service on that light-boat. A. —I think Mr. Chip- 
man pays the men. I think so: I would not be positive. 

“ Q. —You won’t be positive? A. — I don’t think Mr. Day paid it: I don’t 
think that he did.” 

* 

That explains this matter, and proves that what conversation he 
had there was with Mr. Chipman. The next question is,— 

“ Now, sir, didn’t Judge Day say to you that there was a great many politi¬ 
cal expenses that had to be met? A. —He might have said it: I don’t re¬ 
member. 

“Q. — And didn’t he say that it was fair and just for those that had position to 
help pay those expenses ? A. —I don’t remember any thing about it. 

“ Q. —Haven’t any recollection whether he said that, or not ? A. —I have not. 

“ Q. (By Mr. Tiiayer.) — Before you received this appointment, was you 
told you could be appointed if you would pay a certain sum out of your salary ? 
A. —No, sir.” 

That certainly puts the lie upon this charge that he made these 
nominations under any agreement that these men should make con¬ 
tributions. And he says that he was appointed by the recommenda¬ 
tion of Mr. Elliott, who was the representative in Congress for that 
district. The witness said, — 1 

“A friend of mine, Mrs. Randall Kelley, a relative of Mr. Elliott, addressed 
him on the subject, and his reply to Mrs. Kelley was, I should get the second 
light-ship; but, when I applied to Judge Day, he said he had a friend who was 
anxious to get the position, but he would give me the ‘ Handkerchief ’ light¬ 
ship.” 


So that there could not have been any agreement with Judge Day 
that he was to nominate him on the payment of a sum of money. 
And the witness says he gave a note ; but, if he did so, it was given 
to Mr. Chipman, and, if it was a note, it was a contribution; so 
it is not material whether it was a note or otherwise. It was so 
long ago, he says, he does not remember it, and very likely he is 
mistaken; but one thing is certain, he never received any inti¬ 
mation or suggestion from Judge Day, or from any one, that his ap¬ 
pointment depended upon the payment of money, or that his holding 
of the office was dependent upon his payment of money, and that 
nothing was done corruptly. It only appears that he made a small 
contribution toward the political expenses; and I don’t know but 
what office-holders are fairly expected to make contributions for 
political expenses. They receive the emoluments of office, they 
reap some of the rewards of the political campaigns, and it is ex¬ 
pected of them to pay a part of the expense of them; and if my 
brother (Mr. Wadleigh) would state his experience, it would be of 


640 


HEARING —JOSEPH M. DAY. 


[April, 


interest on this point, I have no doubt; though not more so, probably, 
than that of the average of public men in New Hampshire. It is not 
to him one of the “sublime mysteries,” but is a practical reality; 
and I don’t think he would consider it any thing awful that the office¬ 
holders should be expected to contribute campaign aid, and especially 
in such a case as that of Valentine Doane, jun., who knows the rewards 
of office only, not the duties. Everybody knows it is a matter of 
public record, that when they have tried to prevent the collection 
of money in the departments at Washington, in an emergency the} 7 
call upon employes to contribute; that the great civil-service re¬ 
former, Carl Schurz, let the contribution-box go round in his depart¬ 
ment. Ah, the contribution-box go round ! — a most earnest call for 
contributions, surely. And we saw letters from high officials, in the 
last presidential campaign, expressing the opinion that it would not be 
considered a breach of official duty if office-holders contributed a 
little something to campaign expenses. The evidence shows the 
weakness of this charge ; there is no evidence worthy of serious 
consideration; and where are all the rest of the men concerned in 
this matter? The}' have taken five officers: they can find only this 
evidence on Cape Cod. They do not find any thing against Judge 
Day’s character as a public officer. I think I need not say more 
upon that point, and will only say that the charge is wholly without 
foundation; that the charge must first have been made, after which 
they tried to get testimony to sustain it, and failed. 

The next charge is, — 

“That after holding the office of collector, or both said 

OFFICES, FOR SOME MONTHS, HE RESIGNED SAID COLLECTORSIIIP FOR A 
PECUNIARY CONSIDERATION, AND WITH THE UNDERSTANDING THAT SAID 
OFFICIALS ALREADY THEN APPOINTED ON HIS RECOMMENDATION SHOULD 
NOT BE DISTURBED DURING THEIR TERMS OF OFFICE.” 

We must look at this as things existed in 1861, and not as they 
are in 1882. Judge Day was a young man, and aspiring. He 
desired, as young men often do, political promotion. I submit it is 
no crime to desire it: it is a laudable ambition, and I respect the 
man who is anxious to serve the Republic in order to bless the Re¬ 
public. And, so far as any action on the part of Judge Day shows 
ambition, it was an honorable and laudable one. Mr. Webster, after 
the death of Mr. Calhoun, said of him in the Senate, — 

“ Aside from that large regard for the species of distinction that conducted 
him to eminent stations for the benefit of the Republic, I do not believe he had 
a selfish motive or selfish feeling.” 

Mr. Webster fully appreciated the nature of that regard. It was 
honorable and patriotic; and to charge upon a citizen who is striving 


1882.] 


SENATE —No. 150. 


641 


to obtain positions by which he ma} T be enabled to benefit his country, 
mercenary and corrupt motives, is most unjust and unpatriotic. It 
shows the baseness and selfishness, not of the part}' charged, but of 
the party making the charge. 

He held the office of collector of the port. It was assured. It was 
the leading political position in that part of the State. He had re¬ 
signed his office of judge of probate and insolvenc}'; and Gov. 
Andrew, the great war governor of Massachusetts, solicited him, for 
the harmony of the party and for the good of the cause, to la}” down 
this office of collector, to leave this chosen boon that he had acquired 
and richly deserved, to keep his old position, and give up political as¬ 
pirations. No man but Gov. Andrew could have induced him to do 
that, but he persuaded him in this veiy capitol. He pledged himself 
to Gov. Andrew that he would resign the office of collector of that 
port, and continue in the office of judge of probate and insolvency. 
It was a patriotic act. It was done for the benefit of his party ; it 
was done for the benefit of the State. It was done to gratify one of 
the noblest figures in the histoiy of Massachusetts. He made a great 
sacrifice ; he made it from a high sense of duty, not from ignoble 
motives ; and he doubtless remembers now with pride and satisfac¬ 
tion that he was able at that time to make a sacrifice, and that he was 
willing at that time to make a sacrifice for the good of the cause so dear 
to his heart, a sacrifice for the country, a sacrifice for Gov. Andrew. Is 
this highly criminal? and is he now, twenty-one } T ears afterwards, to be 
arraigned for having committed that offence ? The testimony is full and 
clear, — that he resigned it for no other reason than that Gov. 
Andrew desired him to resign it, and that by so doing he would promote 
the highest interests of the State. It may be said, that is all very 
well; but he received from Charles F. Swift a pecuniary consideration 
for resigning it. That he denies most emphatically, and there is not a 
word of truth in that charge. He says that his mind was made up 
here before returning to Barnstable, and that he had no reference at 
all to any thing which might take place elsewhere. He went and told 
Mr. Swift that he had come to this conclusion to resign. He tells you 
frankly and fully what he did. He says he suggested it to Mr. Swift. 
He was the only man who was in a position to expect or to receive 
this office. He said to him in substance, I am making a great 
sacrifice here, and it seems to me that I ought to have some recogni¬ 
tion ; and Mr. Swift, with an honorable, patriotic desire to aid in this 
service to the party and the country, and to further the wishes of Gov. 
Andrew, took upon himself a part of the burden. It was a trans¬ 
action noble and patriotic on the part of each of them. Judge Day 
left this office for a poorer one, not for a better one. He was to get 
much less salary, and was depriving himself of the chances of political 


642 


HEARING —JOSEPH M. DAY. 


[April, 


promotion. Let 11 s put it in tlie most favorable light that it can be 
put for the petitioners. Judge Day and Mr. Swift made the joint 
sacrifice for the good of the party and the State. It was the joint 
sacrifice of Mr. Swift and Judge Day; and they both made that sacri¬ 
fice willingly, cheerfully, and patriotically ; and Judge Day bore the 
heavier part of the burden. Is that a crime? Hadn’t Mr. Swift a 
right to help Judge Day bear the burden he had taken upon himself 
for the good of the Republican party, for the good of the old Common¬ 
wealth of Massachusetts, and as a favor to Gov. Andrew? Mr. Swift 
was doing nothing more in this matter than obeying the scriptural 
injunction, “ Bear ye one another’s burdens, and so fulfil the law of 
Christ,” which is certainly the law of love. This commandment, if 
it has been known to prosecutors in this case, has not had any thing of 
the practical effect that it ought to have had upon them. To charge 
the action of Mr. Swift as a crime, is to call virtue vice ! It is a 
violation of every principle of right and justice to say, that when Mr. 
Swift cheerfully, joyously helped Judge Day .to bear the burden of tk^ 
sacrifice he had made, that he was guilty of wickedness and corruption. 
Judge Da}' never thought of corruption, and Mr. Swift never thought 
of it; and I submit it is a wicked man that cannot conceive that 
another may be actuated by high, noble, and patriotic motives in a 
transaction of this kind. I pity the man that sees a meanness in 
every act of charity, and is willing to impute mercenary motives to 
every man who is willing, and ready to assist in bearing the burdens 
of his neighbors or his friends. Judge Day tells you that nothing was 
further from his thoughts than any thing like bribery; and where is 
Mr. Swift? If he would say any thing different from Judge Day, would 
say any thing to contradict Judge Day, they certainly would call him. 
Judge Day has testified, and nobody has come to contradict him in any 
particular. It may be said, why didn’t we call him ? Because we knew 
Judge Day’s declaration was true ; and we challenged them as we 
challenge them now to bring a fact in opposition to our position. 

We have the testimony here of Mr. David Bursley upon this mat¬ 
ter, on which I propose to comment. The man is sick. He is “ nigh 
unto deathbut he has placed himself in this position from his own 
choice. , 

He gave it because he chose to give it; he gave it when the advice 
of his physician, had he been consulted, would have been against his 
testifying. He undoubtedly knew what his physician would say. He 
gave it, as I said this morning, because he was willing to hazard his 
life for an opportunity to vent his malice on Judge Day ; and, when a 
man places himself in that position, he certainly ought not to expect 
any thing other than fair treatment; and fair treatment he shall 
receive at my hands. 


1882.] 


SENATE —No. 150. 


643 


I call the attention of this Committee to the deposition of Mr. 
David Bursley, because it bears upon its face the evidence which 
proves it to be a falsehood, and shows the malice of this deponent. 
He says, “1 told Judge Da} T that it was usual and customar 3 r in such 
cases for the subordinate officers to pay the collector the expenses he 
had been to.” He says, “ We sat down together, and made out the 
list of the officers, and what offices they were to have ; and then he 
wanted to figure out how much each one should be taxed to pay his 
expenses. That he agreed to appoint a list of officers, and assessed 
them from one hundred dollars down to fifty.” He then says, 
“ Judge Da}r made a list, and made a second ; that Judge Day took 
one, and he took the other.” Now, look at his statement. Judge Day 
made a list of the officers, and then he made a second list. “And 
Judge Daj r took one, and I took the other,” he says, “ and I took a 
copy of it, and I have had it in my possession ever since.” 

Now, where is the original? 

Mr. Wadleigh. That is incorrect. 

Mr. Thompson. My statement is correct. You stand b} T the depo¬ 
sition? 

Mr. Wadleigh. That has not been corrected in print on there. 

Mr. Thompson. It is precisely the same in the deposition : there 
is no mistake about it. He says he made a copy of the one he had 
made by Judge Da}G Now, I ask, where is the original, or dupli¬ 
cate, he received of Judge Da} r ? Does he explain wiry it is not 
produced? On what rule of evidence is he allowed to annex his 
copjT I say again, that bears upon its face evidence of its own false¬ 
ness. 

Mr. Wadleigh. You just look again there. 

Mr. Thompson. No, sir: the deposition reads as I have stated. 
This deposition is not entitled to be aided by interpolations. It 
must stand as it is. I objected to its admission in the first place, 
and do not want it amended here, as Mr. Bursley did not amend it. 
He says he (Judge Day) made a list, and made a second; and that 
is the testimony, and we have nothing to do with any thing, except 
the testimony; and what I submit is, the evidence here is that he 
kept a copy of one he received of Judge Da 3 r . 

But where is the original ? The duplicate he took he says he received 
from Judge Day. If he had such a paper in the handwriting of Judge 
Day, would he not produce it? Judge Day says Bursley never had 
any thing of the kind ; and, if he had such a paper in Judge Day’s 
handwriting, it would certainly be produced. This list is a manufac¬ 
tured list. Wh 3 r , look at it! Just let me call your attention to the 
heading, — 

“ Oct. 1, 1861. District of Barnstable. Joseph M. Day, Col 


644 


HEARING —JOSEPH M. DAY. 


[April, 


lector of Customs.” This list, he says, was made before the appoint¬ 
ments were made. Was that not before October? Is that the cop}'? 

Did Judge Day put down Oct. 1, 1862, and alter the 2 into 
a 1? Ah! Bursley’s hand repelled the wickedness of liis mind. 
He manufactured this statement, and he put 2 where he meant to 
put a 1. Men oftentimes put the dates back when writing, but 
they never put the date ahead. They do not make such a mistake as 
that. There is no such case on recqrd, and it shows that this exhibit 
is a manufactured one. I challenge anybody to dispute that it was 
any thing but 1862. 

Look at the next two lines, “ Amounts collected of the following 
officers appointed and recommended for appointments in said dis¬ 
trict.” Did Judge Day, before these appointments were made, 
make such a statement as that? IJe says this paper was made 
before the appointments were made. It was a list of men that were 
to be appointed, and the assessments were made on those men when 
it was contemplated to have them appointed ; and this is made up as 
of October. Does not that prove this statement to be a pure fabri¬ 
cation ? 

$ 

Then, look and see how it is indorsed on the back. The indorse¬ 
ment is in his own hand ; it is written apparently at the same time 
the paper was written, — 

“List of officers, and what they paid to collector of customs. J. M. DAY.” 

But not what they were assessed ; and bear in mind all the time, that 
this was made before any appointments, and before any recommenda¬ 
tions were made ; and I say that it is of a piece with the whole 
deposition. It is a wicked and malicious falsehood, and the paper 
bears on its face the most convincing proof of it. David Bursley 
himself says he does not know that a cent was ever paid by any one. 
If so, why did he indorse on the back of that paper whenever he 
made it, when he had no knowledge that it was true ? A man that 
would put on the back of a paper like that such a statement is not to 
be relied upon. It was manufactured by a politician for future use 
against an opponent. 

[A short recess was here taken.] 

Mr. Thompson, resuming, said, — 

I was commenting on the indorsement on that exhibit annexed to 
the deposition of Mr Bursley, and I say it is perfect folly to claim 
that it was made in May before the officers were recommended 
for appointment. It is certain that paper was made after the time 
he says it was made ; and the change of those figures at the head 
shows conclusively that it was made long after 1862, because he put 
“ 18‘62.” He didn’t get far enough back in his date. It was made 


1882.] 


SENATE —No. 150. 


645 


after Judge Day resigned tlie office of collector. It was made un¬ 
doubtedly after October, 1862, to meet some conjectured emergency. 
It ma 3 T have been made when Judge Day was in the army engaged 
in the defence of his country. It was not made earlier than October, 
1862 ; and I feel confident it w r as made at a later date than that. It 
was made for a wicked purpose. It is used for a wicked purpose. 
It is in harmony with all we have seen of Mr. Bursley. 

I will now call the attention of the Committee to the column and 
footing of the column under “ Lighthouse, light-boats, and post¬ 
masters.” You will find against the name of Johiel Simmons, boat¬ 
man, of Hyannis, a clear alteration in the figures. What the}- were 
first does not very clearly appear; but it is quite apparent they 
were fifty dollars. Do men, when making copies, make changes 
of this kind? Or, if the} r make mistakes, does it happen that the 
mistake in the footing exactly corresponds with the mistake in 
the column? You will find on inspection the amount was $355 in the 
footing, and he has altered it to make it $340. Is there any proba¬ 
bility he would make a mistake in the footing of just the amount that 
he made in the column? Certainty not. And that proves that is not 
an original paper; that, after he made that paper, and put $50 to 
the name of Johiel Simmons, he altered it himself to $35, and then 
made the footing $340 instead of $355. Did Judge Day make that 
mistake? Was he copying $355, and then altering it to $340 to meet 
the change made in the figures of the column. Doesn’t it show, be¬ 
yond all controversy, that this exhibit is an original paper, and not 
a copy? It never happened since the world began that such mis¬ 
takes were made in a cop} r . He would have kept the footing right, 
would he not, even if he had copied the amount against the name 
Johiel Simmons wrong? It cannot be that he made both mistakes in 
a copy. I say again the paper bears* upon its face the evidence that 
it is an original paper, and not a copy. 

David Bursley says that he kept this, not exactly as the apple of 
his eye, but he has kept it ever since the time it was made for use as 
a dagger; and, when he came to Boston this winter, he brought it 
with him, longing for an opportunity to use it. lie says, when he 
came to Boston he brought that with him. Do you want any other 
proof of malicious intent? He came to Boston with his wicked pur¬ 
pose ; and, when a man at his time of life takes with him weapons of 
his malice, he is not in a position to ask for any very charitable con¬ 
struction of his evidence. He writes himself a deceiver and a falsi¬ 
fier, both upon the heading of the paper and its indorsement. 
Judge Day says the money put down on that paper was not paid to 
him, and nobody says it was. The statement is false from the be¬ 
ginning to the end. 


616 


HEARING —JOSEPH M. DAY. 


[April, 


How does this man’s reputation stand for truth and veracity 
among his neighbors? We have here a number of witnesses upon 
that point, and I will consider the evidence in the order in which the 
witnesses testified. 

Charles G. Davis of Ptymouth said he had business at Barnstable 
quite a number of } T ears, and that during that time he heard the repu¬ 
tation of Mr. Bursley discussed, — political reputation, it ma}^ be,— 
and he sa} T s his reputation was bad concerning such matters as he 
is testifying to now, — political matters. If a man is a liar in politics, 
will he not lie in reference to such matters as he has testified to here? 

learned brother (Wadleigh) seemed very anxious to show that 
David Bursle} T is onl}’ a political liar; but a political liar is one of 
the most contemptible creatures that crawls about the earth. Mr. 
Erastus Chase of Harwich is a man that has known him for a 
long time, and he says that his reputation is not the best, and added, 
u It has not improved for the last ten years.” 

Mr. Freeman II. Lothrop, register of probate in that county, says 
that it is bad ; that he has heard Samuel Snow say it w r as. And he 
was called upon the witness-stand, and he did not den} T it; but he 
could not remember that he had made such a statement. He saj’s 
that he heard Roland Hallett say it was bad, and Edwin S. Finne} r 
and William Holmes and Nathaniel Sears sa}' it was bad ; and none 
of them brought here can sa}^ aught in his favor. When a man’s 
reputation for truth and veracity is discussed in public places among 
public men, you may be sure that it is not good. 

Smith K. Hopkins, clerk of the courts, a very responsible party, 
and one in a position to know the reputation and character of David 
Bursle} r , says his reputation is very bad. 

Mr. Ansel D. Lothrop of Barnstable sa}’s his general reputation 
is bad. He saj’s he has heard it discussed in the shops and in the 
post-office. 

His reputation is spoken of often, and. that is the reputation of 
this man among his neighbors. 

Nathan Edson, one of the selectmen of Barnstable, has known him 
for a number of years ; and he says his reputation is bad, but good 
in some particulars ; and he gave you to understand that it was in 
financial matters good, that he is a man that meets financial obliga¬ 
tions. But, when my brother asked him whether he would lie under 
oath, he said, “ I think he would ; I think he would lie under oath.” 
That comes in response to a question put by the other side, from one 
of the selectmen of the town of Barnstable. 

Joseph K. Baker of Dennisport, who has had business with him 
frequently, and is well known in Barnstable and throughout the whole 
county, is a friend of Judge Day. He knows whereof he affirms, and 


1882.] 


SENATE —No. 150. 


647 


lie sa 3 's Mr. Burslej T ’s general reputation is not good. He says he 
has heard Mr. Samuel Snow and Dr. Gould question it. 

And then comes Nathaniel Sears of Hyannis, a conductor on the 
railroad, in a position where he would be likely to hear Bursley’s 
reputation discussed. He says his reputation is spoken of often in 
the cars. “It is not good. It is often spoken of in the cars, and 
called bad oftener than any other way.” 

Cyrus B. Smith of Barnstable has known David Bursley for thirty 
years, and he says his reputation is bad. 

Mr. E. B. Crocker of Barnstable, deputy-sheriff, sa}’s his general 
reputation is not good. 

Alfred Crocker, the postmaster, sa 3 %s his reputation is good among 
his friends, and bad among his enemies ; that is, some sa 3 T it is 
good, and some it is bad. His testimon 3 ' goes to show clearly that 
his reputation is very questionable indeed. 

This testimoii 3 ’ comes from people in the vicing 7 , — people who 
know Bursley’s reputation, — and proves conclusiveh 7 that his reputa¬ 
tion for truth is bad. And never was such a fruitless attempt made 
to bolster up a bad reputation, and to make it appear good, as we 
have seen in this case. The 3 T have not dared to call an 3 T man from 
Barnstable familiar with the public sentiment there, except Major 
Phinne 3 T . And I honor him : the spirit he manifested here is highly 
commendable. For many 3 T ears he was the editor of “The Barn¬ 
stable Patriot,” an able Democratic newspaper. He has had bitter 
and exciting contests with the Republicans. He is no longer an 
editor: the fires of contention are quenched. He cannot remember 
any ill of his old opponents. He says he has heard David Bursley’s 
reputation for truth discussed among politicians, and necessarily 
there must have been sides taken in the discussion. Some said 
it was good, some that it was bad. Major Phinney takes the 
o-enerous and charitable side now, whatever side he may then have 
taken. 


Thank God for such a memory as he has! He cannot remember 
any thing that compels him to say that David Bursley’s reputation is 
bad, and he says it is good. His evidence shows his own charity, 
rather than the character of David Bursley’s reputation. How 
marked the contrast between Major Phinney and Mr. Bursley ! the 
one in his old age is generous and forgiving, the other malicious and 
unrelenting. Were David Bursley possessed of the temper and 
character manifested by Major Phinney, how much happier would 
be his declining days. But he grows more wicked as he ad¬ 
vances in years. He has none of the spirit of forgiveness; but 
he strives for revenge, and is willing to shorten his days to accom¬ 
plish it. 


648 


HEARING —JOSEPH M. DAY. 


[April, 


The next man the}" bring is John Kendrick of Orleans ; and he 
sa} T s, u Ilis reputation with us is good, as far as I know ; have been 
in Barnstable in the last five 3 'ears two or three times, and I never 
heard it discussed as I recollect.” And that is a man from the town 
of Orleans, twenty-two miles awa}\ Why don’t the}- bring a man 
from Essex County? Why, he is a man not having any particular 
interest in Barnstable, and not having any thing to call him where 
David Bursley’s reputation would be discussed, and he says he heard 
nothing about it. 

And then we have Thomas Sears of Brewster, fourteen miles away ; 
and he sa}-s he never heard it questioned, so far as he knows. 

They have witnesses, who, not being acquainted in Barnstable, 
have not heard his reputation discussed. 

And Clark Lincoln, he comes from the other side of the Cape, from 
Centreville, five or six miles awa}\ He says he has been three or 
four or five times a } r ear to Barnstable, but has had no particular 

associates at Barnstable Centre. He has not heard any thing about 

/ 

his reputation. 

Dr. Henry Shortle of Provincetown, forty-five miles awa}", says his 
general reputation is considered good. He has heard it discussed 
when in Barnstable. Even this Provincetown man forty-five miles 
awa\ T has heard it discussed. It is a matter of discussion : strangers 
going there hear it discussed. 

ZD ZD 

And then we have Bradford B. Briggs of Sandwich, twelve miles 
awa} r . He has been at Barnstable once in two }'ears, and he sa}"s he 
never heard any imputation upon it. That is negative testimony", 
and, if it came from his neighbors, it might be regarded as of value ; 
but when, coming, as it does, from comparative strangers from a dis¬ 
tance, from persons who have never heard his reputation questioned, 
it is not of any value. It does not aid his reputation. 

William Nye is called, who comes from Falmouth, twenty-two miles 
awa}\ He never heard any thing but good, and he is twice a }*ear in 
Barnstable. 

And then comes Adolphus Davis of Boston, formerly of Barnstable, 
who goes down there once or twice a year for pleasure, or to visit his 
friends. This witness regards it as good. 

And then Dr. A. J. Church of Eastham is called. He was the 
clerical aid of David Bursley in the political campaign for sheriff. 
Not a very disinterested witness certainly. He would hardly wish to 
confess that he engineered a campaign for a man with such a reputa¬ 
tion as David Bursley actually has. 

• And then comes Samuel Snow, five miles away, and he savs it is 
good. But he cannot say that he has not said in private conversation 
that it is bad; that he is one that helped to make this reputation of 


1882.] 


SENATE —No. 150. 


649 


Mr. Bursley, and he is one of the most active men in this prosecution. 
He is constantly here, not only as a witness, but as a party, and with¬ 
out doubt to lobby his case thrpugh if possible. The testimony of 
such a man is to be taken with the greatest allowance. 

ihen we have the opinion of John A. Clark of Eastham, twenty- 
four miles away. He never heard it questioned. He never heard it 
discussed. That is the whole of his evidence. 

And then Francis D. Cobb, the representative from Barnstable, 
whom they brought in at the last moment, says that he considers 
it good ; but he says he has not been in Barnstable a great while; 
takes no part in matters there, and is not at the stores often, or 
places where such things are discussed. 

All that they really have from Barnstable is Major Phinney. And 
the} 7 have gone all over the Cape to find men that have never heard 
it questioned, and have found the greatest difficulty in discovering 
even men of that class. Where are his neighbors and political friends 
and associates? Nobody comes from Barnstable but Major Phinney, 
who shows his own charity, as I have already said, rather than the 
reputation of Mr. Bursley. I say they have not dared to call any of 
the representative men of Barnstable, and their failure to call such 
persons shows conclusively that we are right in our position as to his 
reputation. We called witnesses from Barnstable, his political 
friends and associates ; men in the neighborhood familiar with his 
reputation ; and they have tried to offset it with men in the different 
parts of the county, who never heard any thing in regard to his repu¬ 
tation, either good or bad. His reputation stands impeached; his 
reputation is bad ; and his deposition, if it can be called a deposition, 
proves him unreliable and a falsifier. His reputation is in perfect 
harmony with his conduct, — both are bad. 

His course is malicious from beginning to end, and his testimony is 
false from its opening to its close. There is no truth in him. His 
evidence as to Mr. Munroe’s and Mr. Swift’s folks is without founda¬ 
tion. There was no reason why Judge Day should have made such 
a statement with regard to Mr. Munroe’s or Mr. Swift’s folks as Mr. 
Bursley says he did. The relations between Judge Day and those 
families were nothing but pleasant. 

I meant to have alluded, when I was speaking of this matter, to 
what was said here by Mr. Sellew. Judge Day says that he put the 
money that he received into every town in the county, I think he said, 
except Brewster and Eastham ; and they, after careful search and 
inquiry, found that Mr. Sellew didn’t get as much money as Judge 
Day stated. 

Jonathan Higgins must have found that his statements were true. 
If they hadn’t found them to be true, we should have heard from them. 


650 HEARING —JOSEPH M. DAY. [April, 

Mr. Wadleigh. Here is Mrs. Sellew’s affidavit [throwing the 
paper on the table before Mr. Thompson]. 

Mr. Thompson. If you think you can interpolate evidence at this 
point, you are mistaken. I haven’t time to read that paper now. 

Mr. Wadleigh. I wanted to give you a chance to know the facts. 

Mr. Thompson. I want to try m 3 ’ case fairly, and I don’t want 
to give you a chance to try it unfairly. You know it is no time lor 
me to read that paper now. I wish to speak respectfully of Mrs. 
Sellew. She is absent. I shall not abuse an absent woman : it is 
not the course I have been in the habit of pursuing. I have no doubt 
that this affidavit contains her recollection, and what she told her 
husband ; but it cannot be introduced at this stage of the case. I 
have no doubt that Mrs. Sellew is a lady, and not by any manner of 
means would I have the contrary assumed. Judge Day has said 
himself, “ I have no reason to doubt Mr. Sellew’s word.” Judge Day 
is not a man to impugn other people’s motives ; but he had associated 
that sum of money — one hundred and forty dollars — with the wrong 
man. He did, as it now appears, send some money to Mr. Sellew. 
The amount is different, differs from his recollection ; and undoubt¬ 
edly he was mistaken. Mr. Sellew is correct as to the amount. It is 
twenty-one years ago, and Judge Da}’ cannot bring the particulars 
full}’ to his recollection. He is mistaken as to the circumstances 
attending the payment. He had but little money; and it was sent in 
larger or smaller sums to parties on the Cape, as he has told you. If 
one hundred and forty dollars went to one man, the whole sum would 
be very soon absorbed. Mr. Sellew’s testimony, instead of being in 
contradiction, supports the position we have taken ; and it shows, too, 
with what earnestness they have sought for evidence to contradict 
Judge Day in any particular. They have brought every particle of 
testimony they could find to contradict him ; and this Committee 
know how easy it is for people, in speaking of transactions twenty- 
one years past, to make mistakes, and fail in their recollection. But 
they have not been able, with all their efforts, to find any thing to 
show that Judge Day ever attempted to corrupt a man by the pay¬ 
ment of money, or to contradict materially any statement that he has 
made in reference to this subject. 

Now, this is twenty-one years ago. He identified one other, Mr. 
Keith, a man who has lost an arm. If Judge Day had given the money 
to that man on account of the accident, he would have been brought 
here, and that fact shown. There is no question but that he sent him 
money ; and, to get rid of the effect of that fact, it is suggested that 
it may have been paid for some other object. He is in Sandwich 
now, and they know it; and they have seen him too, and found that 
Judge Day’s recollection is correct. 


1882.] 


SENATE — No. 150. 


651 


\ ou find they go into all parts of the State after testimony; and I 
sa 3 again, if the money paid Mr. Keith had been on account of that 
accident, 3 ’ou would have had him here to prove it. The suggestion 
that it might have been on account of an accident is without any 
foundation. I say, in regard to this whole matter, it is twenty-one 
} T ears ago ; it is in no way connected with the performance of Judge 
Day s duties as judge of probate and insolvenc} r ; it was in the first 
3 T ear of the war. Judge Da 3 r went into the service of his country as 
a soldier; and did an 3 T of the people on Cape Cod think of removing 
him for this when he was before Fort Wagner in the trenches, peril¬ 
ling his life in their defence ? Would it then have been thought a 
sufficient ground for proceeding against him b 3 7 impeachment, that he 
had been aided in pa 3 T ing political expenses b 3 ' his associates in 
office, bv T men as much under obligations to bear the burdens of a 
political campaign as he was, or because a friend had vied with him 
in bearing the loss which a great personal sacrifice made for the good 
of the Republican party and the State, and to aid Gov. Andrew in 
the performance of his trying duties, had imposed upon him? All 
that Judge Day did in this matter was known twent 3 T -one years. It 
was not then thought worthy of notice, except by political opponents 
who are ever too read 3 r to impute base motives where only noble and 
patriotic exist. This was not done in secret. There was nothing to 
conceal. It was honest; it was done openty ; it was not disapproved 
when all the facts and circumstances were fully known and fully 
understood. Twenty-one years of full knowledge of the facts, and a 
failure to take exception to them, ought upon an 3 r principle of law, 
equit 3 % or justice, and fair dealing, to estop its being presented now, 
when the recollection has become so impaired, and the facts and cir¬ 
cumstances so incapable of being reproduced. 

All that is known this 3 T ear was known at the time of the investiga¬ 
tion last 3 'ear. The counsel who had the management of the case of 
the petitioners then were too honorable, knowing all the facts, to ask 
for its consideration. David Bursley was one of the principal peti¬ 
tioners last 3 r ear. Gov. Boutwell and Mr. King were acquainted with 
the people of Cape Cod and their politics in 1861 ; and the 3 T would not 
make so groundless a charge, — a charge where, in order to make an 3 r 
show of support, all the facts and circumstances must be so grossty 
misrepresented, and base motives charged where none but high and 
honorable existed. I’ll not impute any unfairness to the counsel for 
the petitioners (Mr. Wadleigh) in this matter, but I do say the peti¬ 
tioners have prevailed upon him to do what honorable counsel familiar 
with all the facts would not do. 

The facts this 3 r ear are substantially the same as the facts presented 
last. There is nothing really new, nothing worthy of consideration 


652 


HEARING —JOSEPH M. DAY. 


[April, 


this year that did not in substance appear last year; and the attempt 
is made by adding this ninth charge to prejudice the mind of the 
Legislature by misrepresentation and distortion of facts, and thereby 
accomplish a purpose which cannot be accomplished by reason of 
any thing done or omitted by him in the performance of his official 
duties in the office he has held so long, and the duties of which he has 
so ably, honorably, and faithfully performed. After all was done and 
known to have been done which he did in the office of collector of 
customs, — there was no secret about it, — he was trusted by John 
A. Andrew, appointed provost-marshal, where he performed most 
valuable services to the Commonwealth. The fact that the minute 
details of the relation between Judge Day and Mr. Swift were known 
at the time by the Hon. Thomas D. Elliott of New Bedford, at that 
time a representative in Congress from that district, and approved 
by him, is something that ought to be taken into consideration as 
bearing upon the question whether at that time, among men familiar 
with the facts, it was regarded as a corrupt or as an honorable trans¬ 
action. It was a justifiable and honorable transaction, and was not 
regarded as otherwise by fair-minded men. And for any portion of 
the people of Cape Cod who have known all the facts that are known 
to-day, after Judge Da}' has spent twenty-three years of the best por¬ 
tion of his life in their service for a mere nominal salary, to undertake 
to ruin his private and official character is most cruel. There is no 
excuse or justification for it. It is without a parallel in malice. The 
charges are as unfounded as they are malicious. I have said all that 
I propose to say upon this matter of federal relations. I will not 
detain the Committee to make a recapitulation of the charges and 
the evidence, although a proper presentation of the case seems to 
demand it. I know that the Committee is somewhat impatient on 
account of the length of time I have already occupied in presenting 
the views of the remonstrants ; but I cannot close what I have to say 
upon this important matter without again calling the attention of the 
Committee to the fact that this is an attempt to remove Judge Day 
from office by a process never before applied to a case of this kind. 
Judge Day’s position is defined clearly by his answer. He has been 
at all times not only ready but anxious to meet his accusers face to 
face before any tribunal “ which can say once for all not guilty as well 
as guilty.” He knows that there is not any thing in his official conduct 
but what will bear the strictest investigation. The more thorough the 
investigation, the more clearly will not only his innocence appear, 
but the faithfulness and ability with which he has performed his duty. 
This proceeding is most unjust. He is arraigned before the Senate and 
House of Representatives for alleged misconduct and mal-administra- 
tion in office, — an impeachable offence, — and is, upon all principles 
of fair dealing, entitled to a trial instead of being dealt with by politi- 


1882.] 


SENATE —No. 150. 


653 


cal legislation. In this proceeding he cannot have a trial. He 
cannot have any thing approximating to a trial. He can only be the 
subject of legislative action. The Senate, if it were to try him, would 
be bound to decide according to the law and the evidence, and, if the 
allegations were not sustained, would be obliged under the law to 
render a verdict of not guilty. In this proceeding he ma}’ be found 
innocent of every charge against him, and still the action of the Le¬ 
gislature be hostile to him. Guilt or innocence is not the question : 
political expediency is all that is to be considered; and that, we are 
told, must control the action of the Legislature. What disadvantages 
is he subjected to? The hearing is before one body, this Committee; 
the decision is to be made bj r the Senate and House of Representa¬ 
tives, who cannot hear the case, and yet must decide it. At no time 
has the whole of the Committee even been able to attend the hearings, 
through no fault of the Committee I am certain ; but it has been im¬ 
possible for all of the Committee to attend to it at the same time. I 
speak of this in order to show the disadvantages of this mode of pro¬ 
ceeding. What advantage, I ask, can this hearing be to the individual 
members of the Senate and House of Representatives? But few 
of them will find time to read the record of this investigation, much 
less to study it, and compare and weigh all the evidence. If he were 
tried by the Senate as a court of impeachment, the court upon whom 
the duty of deciding the case rests would then hear the evidence of 
the witnesses and the arguments of counsel, and pass upon the facts 
as a jury passes upon the facts in court. But we are told by the 
counsel for the petitioners that a trial is not contemplated by the con¬ 
stitution, and that the finding of the Legislature in favor of his removal 
b} r address would not necessarily impeach his character as an upright 
and faithful and able judge. It would only indicate that the Legislature, 
for some reason or other, for some purpose or other, which no mem¬ 
ber of the Legislature is called upon to disclose, deems it upon the 
whole expedient to have him removed. It is onty a question, we are 
told, whether the Legislature for some cause deems the adoption of 
the measure of address to be for the public good. It may be an 
acceptable mode of proceeding in New Hampshire, where they remove 
all the judges of a court at pleasure for the purpose of having an 
opportunity to reward political favorites. But the old Commonwealth 
of Massachusetts has always prided herself upon the stability of her 
judiciary, the independence and impartiality of her judges. She has 
stood by the life-tenure or during good behavior. She has always 
labored to keep her judiciary as free as possible from political influ¬ 
ences, so that her judges may be “as free, independent, and im¬ 
partial as the lot of humanity will admit; ” but this is a bold attempt 
at a most radical innovation. 

Look at the history of Massachusetts from the adoption of its 


654 


HEARING — JOSEPH M. DAY. 


[April, 


original constitution to the present time, and you will not find that 
such a proceeding as this has ever been attempted. This is the first 
case to be found where there has been an attempt to remove a judge 
by address when an issue of fact has been formerly raised and con¬ 
tested. It is a clear attempt to ingraft upon our judicial system a 
new tenure of office by which all the judges shall hold their commis¬ 
sions only during the political will of the Legislature, which is the 
will of the dominant party. From the removal of Judges Sargent 
and Vinal by address down to the removal of Abraham Jackson, a 
justice of the peace, there never has been an issue of fact tried under 
an application for removal by address ; but, whenever a question of 
fact has been put in issue affecting the official character of a judge, 
the Legislature has always proceeded by impeachment, has tried the 
party charged, and given him an opportunity to be heard in his de¬ 
fence, and for an acquittal if not found guilt} 7 . If the Legislature 
adopts this mode of dealing with its judicial officers, it will certainty 
come back to trouble the party that inaugurates it. You establish 
the precedent that the judges can be removed by mere legislative 
political action, without proving any charges against them ; and you 
adopt a principle which any successful political party may take ad¬ 
vantage of, to remove all of your judges as they have removed them 
in New Hampshire, and put friendty partisans in their places. If 
Judge Day is removed, this will be the precedent. It will then be 
said, you inaugurated this system, and declared by a solemn act that 
it is just and right to make the office of judge a political office, that 
they may be removed at the will of the Legislature, however faithfully 
they may have performed the duties of their office. It has been 
boldly proclaimed, that they do not propose to impeach Judge Day, 
that they can remove him without his being found guilt } 7 of any of 
the charges preferred against him, that all that is necessary for the 
party in power is to determine that it is expedient to remove him. 
The petitioners have placed themselves squarely upon that position. 
The general good, it is said, demands it; and that is all that need be 
established, and there need be no unanimity of conviction as to why 
the public good demands it. The distinguished counsel for the peti¬ 
tioners (Gov. Boutwell) last year, said, and correctly too, that this 
is the first case that has ever been brought before the Legislature of 
Massachusetts, that can be regarded as a precedent, taking the posi¬ 
tion that there is not to be found a precedent for these proceedings ; 
and I am fully justified in saying that it is an attempt to inaugurate a 
new mode of proceedings, to make our judges subject to the action of 
political parties. I need not say that there are seven judges of the 
Supreme Judicial Court, eleven judges of the Superior Court, with 
fourteen judges of the probate and insolvency court, and a long list 
of judges of the municipal, district, and police courts, making some- 


1882.] 


SENATE —No. 150. 


655 


thing that political parties will be always quite ready to contend for 
when it is declared by a solemn legislative act to be a proper prize of 
party contention. I ask this Committee, and through this Committee 
I ask the Senate and House of Representatives, to pause long before 
they make such an innovation as this upon our judicial system. Such 
a system may be regarded in New Hampshire as a wise system ; but 
the judgment of Massachusetts has always been, and is now, most 
directly opposed to it. I ask that the character and reputation of 
Massachusetts in this particular ma}^ not suffer by your action. If an 
officer is charged w r ith misconduct and mal-administration in office, 
'let him be tried. He can only be tried by impeachment. I ask the 
attention of the Committee particularly to the learned argument of 
my associate (Mr. Talbot) upon this question, in which he maintains 
the position, that, for misconduct and mal-administration in office, 
impeachment is the only mode where any question of fact is to be 
determined, and that the other mode, proceeding by address, is to 
reach wholly a different class of cases, where no question of fact 
relating to official misconduct is put in issue. Contemporaneous 
construction is of great authorit}’, and the construction of the Consti¬ 
tution for one hundred years is directly in favor of the position for 
which I am contending. 

This is a case of res adjudicata to all intents and purposes. The 
same accusations were heard before the General Court last year, or 
were then fully known to the petitioners. All the facts now brought 
forw r ard, even those involved in the ninth allegation, they then knew. 
A failure to convict was an acquittal. 

In 1881 they chose not to present them. They ought to be estopped 
by their waiver from now presenting them in 1882. They ought not 
to be allowed to persecute by such piecemeal prosecution as is now 
attempted. To the accusers of a judicial officer, one opportunity is 
enough. If not, how many shall they have? When and where must 
they stop? Is their success the only constitutional limit? Can 
innocence never be established? 

It is claimed that Judge Day received a gift while in office, and that 
that is most criminal. But is it? Did not Mr. Webster during his 
political life receive gifts to enable him to sustain himself in the 
service of his country, to compensate him in some small degree for 
the great pecuniary sacrifice he made in devoting his time to the 
public service? Has not Gen. Grant received pecuniary aid from 
his friends in consideration of his devotion to the Republic? And 
are there not many others in our country who have received such 
consideration from the hands of their friends? Did not Richard 
Cobden, the apostle of free trade, receive gifts? And is it any thing 
new in political life for public servants to receive, not bribes, but 
honest, cheerful gifts, in consideration of the sacrifices they have 


656 


HEARING —JOSEPH M. DAY. 


[April, 


made in the public service? Even men of the holy calling leave a 
salary of a smaller sum for a larger one ; but seldom, if ever, will they 
sacrifice for the good of the cause a larger salary for a smaller one. 
But Judge Da} r , for the public good, jdelded a place of large emolu¬ 
ments to hold a place of very small emoluments. This is not the way 
that men act who either bribe or are bribed. In every view of the 
situation, Judge Day made himself, personally, a large sacrifice for 
the good of others. This manifests a disposition wholly different 
from a spirit of bribery. I will not detain the Committee but a few 
moments longer. As I have already said, I appear for more than 
seventeen hundred and fifty" remonstrants, a number almost equal to 
the total vote cast in Barnstable County in the last gubernatorial 
election, and that too against the claim of eight men who are the 
petitioners for these proceedings. It is of most vital interest to the 
remonstrants that this case shall be decided in their favor, that they 
may continue to have in the future, as they now have, a wise, learned, 
faithful, and upright judge,—a judge during whose term of office, 
covering more than twenty-three }’ears, the most rigid examination of 
all his official and personal acts has not discovered a blemish. His 
opponents cannot produce a single instance where any person has 
ever failed to receive at his hand most full and ample justice, or where 
in any particular he has shown any other disposition than a disposi¬ 
tion to faithfully administer the law. If any vindication of his char¬ 
acter were needed, this hearing has furnished it. No ingenuity can 
distort the facts here proved into any thing other than a full exculpa¬ 
tion of him from all the charges made against him. The failure to 
establish aught against Judge Day is the strongest possible proof of 
the perfect fidelity with which he has performed the delicate duties of 
his important office. 

I trust that this Committee, which are the eves and ears of the 
General Court, will feel it to be its duty as certainly its pleasure 
to report against the granting of the application for address. I 
know it is more difficult to defend and uphold a faithful officer 
than to abuse and malign him. Still I am confident that this Com¬ 
mittee will not be swerved from its duty by an} r misconceived idea 
that it will be popular to appear to have discovered wrong, even where 
no wrong exists. The Parliament of Great Britain brought upon 
itself the deepest disgrace by its bills of attainder. A free people will 
never consent that a citizen shall be convicted by a legislative vote. 
It is the glory of our system of government that no person, however 
humble or high, can be condemned without a trial. Ma} r it always 
remain so. I thank the Committee for the patience and kind atten¬ 
tion with which they have listened to my presentation of the views 
of the remonstrants. I am aware that I have not done justice to their 
merits. I ask for them your impartial consideration. 


1882.] 


SENATE —No. 150. 


657 


TWENTIETH HEARING. 


Green Room, State House, Boston, 
Tuesday, April 11, 1882. 

The Committee met at 9 o’clock a.m., Senator Jennings presiding. 

ARGUMENT OF BAINBRIDGE WADLEIGH, ESQ. 

Mr. Chairman and Gentlemen, — I congratulate you upon ap¬ 
proaching the end of this long and tedious investigation ; and I 
thank the Committee in the outset for the patience which they have 
manifested, and for their evident desire to perform their duty in such 
a way as to meet the approbation of all right-minded persons within 
the Commonwealth. 

This question is one which concerns, not only’ the people of Barn¬ 
stable County, who are directly interested, but more remotely 7 the 
people in all parts of the State; for if the people of Barnstable 
County succeed in effecting the removal of an officer who is justly 7 
obnoxious to them, and the right of removal by 7 address in this case 
is sustained by 7 the Legislature, the people of oilier counties in the 
State, who may 7 at some time be similarly situated, may 7 be saved 
from such breaches of law and propriety 7 as Judge Day has been guilty 
of. This matter comes before the Legislature upon petitions pre¬ 
sented last year by’ some thirteen hundred of the most respectable and 
intelligent men of Barnstable County 7 , on which a hearing was then 
had. When this matter was presented anew at this session, the peti¬ 
tioners did not deem it necessary to renew their petitions. They 
consulted together in regard to it. They 7 knew that no change of 
public sentiment had occurred in that county with reference to Judge 
Day 7 , and they 7 did not think it necessary 7 to again petition this Legis¬ 
lature for the removal of the judge, the grounds upon which they 
asked his removal having been stated last year. 

My brother Thompson has dwelt with much force upon the fact, 
that, while thirteen hundred citizens of Barnstable County last year 
petitioned for the removal of this judge by address, he has been able 
to procure some seventeen hundred names, I think, remonstrating 
against his removal. And you are urged, gentlemen, to take it for 
granted that the remonstrants represent the views of a majority of 
the people of Barnstable County. Let me say that I do not attach 
to petitions and remonstrances the weight which my brother Thomp- 


658 


HEARING —JOSEPH M. DAY. 


[April, 


son seems to attach to them in this case. I know how eas} r it is to 
procure names to petitions for the purpose of bestowing a favor upon 
somebody. For instance, if a man goes to the public with a petition 
for the appointment of somebod}' to an office, no one likes to refuse 
to sign. It is easy to obtain names in such cases ; it was equally 
eas}' to obtain names to this remonstrance; but, Mr. Chairman, the 
same rule does not appl} T to the petitions in this case. The petitions 
asked for the removal by address, upon grounds clearly stated, of an 
official in the county of Barnstable, whose enmity was to be dreaded, 
and whose favor was to be hoped. The men who signed those peti¬ 
tions knew they would meet his bitterest enmity, and that petition 
represents their deep-seated convictions w r ith reference to the public 
good. The remonstrances stand upon no such ground. The}^ offend 
nobody. It was eas}' to sign them. Consequently the petitions and 
the remonstrances do not stand upon the same ground, and are not 
entitled to the same weight. 

In this connection, Mr. Chairman, I want to read to von an article 
from a newspaper published in the county of Barnstable, by one Mr. 
Swift, — who bought from Judge Day the office of collector of customs, 
— to show the feeling of Judge Day’s friends towards the petitioners. 
I quote from an article in what is, I think, “The Yarmouth Regis¬ 
ter:”— 

“Some of (he Boston papers report that petitions are in circulation on the 
Cape, asking for the removal of Judge Day. This may be true, but we know 
of nothing reliable on the subject. But one thing may be certainly predicted : 
if the thing goes on, other persons as well as the judge are liable to get hurt. 
The interval between last winter and this has been well improved, and if any¬ 
body wants an interesting little season they can be accommodated.” 

Mr. Thompson objected upon the reading of the first sentence of 
this extract, saying, I object to the reading of newspaper articles 
in the argument, the}' not having appeared in the testimony given in 
the case. 

Mr. Wadleigh finished the quotation, and continued : Then, too, 
Mr. Chairman and gentlemen, look at the manner in which Judge 
Day through his counsel has treated the most respectable people of 
Cape Cod in this hearing. They have been charged over and over 
again with having malice and murder in their hearts. I want to call 
your attention to one other fact: that the reports furnished to the 
press, of the testimony in this hearing, have been garbled. With one 
or two exceptions they have grossly misstated the evidence. They 
have been prepared by somebody to create a false impression in the 
public mind. I charge no wrong upon the leading managers of the 
newspapers in this city. I know how difficult it is for the proprietors 
of a great journal to always exclude from their columns what is un- 


1882.] 


SENATE —No. 150. 


659 


true, and calculated to mislead the public. I have seen the editorial 
columns of a great metropolitan journal denouncing public plunderers, 
while its news columns were devoted to their interests. I do not ex¬ 
pect entire correctness in all reports furnished by the press to the 
public : the gross perversion of the testimony in this case surprises me. 
Let me call one or two instances to the attention of the Committee, 
■which probably the}' noticed. For example, — and I name only one 
or two cases out of scores, — we called Isaiah Gifford as a witness ; 
and it was a material question whether or not he was guardian of 
Mary Stid when he made a certain payment to Judge Day. He tes¬ 
tified that he was appointed by Judge Day himself, under circum¬ 
stances which could not fail to make that fact remembered, because 
the woman became insane before her husband’s burial. Two years 
after the appointment was made, he consulted Judge Day, and paid 
him as guardian ; and the payment went into his guardian’s account. 
And yet the newspaper report stated that it appeared the payment 
was not made by him as guardian, although there was not a particle 
of evidence on which to found such an assertion. 

Mr. Thompson. I certainly object to bringing the newspapers into 
the case. We have no newspaper evidence at all. 

Mr. Wadleigh. You have had your argument, and said what you 
pleased with regard to the evidence. 

Mr. Thompson. If I had gone outside the evidence, I should ex¬ 
pect to be called to account. I supposed this was in some degree 
a judicial investigation. If it is necessary, we will agree to take 
another da}', and let all the newspapers go in, and we will put in news¬ 
papers. If Mr. Wadleigh says that there was no evidence to show 
that Isaiah Gifford did not pay that money as guardian, he has a 
right to claim that, if he sees fit; but my objection was to his bring¬ 
ing in a newspaper story. It was in that connection that I objected 
to it, — as a part of a newspaper rehearsal. 

Mr. Wadleigh. I repeat, Mr. Chairman and gentlemen, after the 
fullest examination, that there is not a scintilla of evidence in this 
case going to show, or which gives any one any reason to suppose, 
that Isaiah Gifford employed Judge Day except as the guardian of 
Mary Stid. He says the woman was insane before her husband was 
buried, and no guardian was appointed until after his burial. Let 
me call your attention to another remarkable thing in this case. 
Judge Day, being charged with wholesale bribery and corruption, 
admits that lie received from certain officials, who received appoint¬ 
ments upon his recommendation, at least seven hundred dollars; and 
also that Charles F. Swift paid him at least eighteen hundred dollars 
when he resigned the office of collector, under such circumstances as 
to leave no doubt that he sold that office. The excuse which he 


660 


HEARING —JOSEPH M. DAY. 


[April, 


makes for suck conduct is the flimsiest excuse ever known or heard 
of. That money was taken bv him, put into his own pocket, and 
used for his own purposes. He knew, that, looked at in that light, 
there could not be found in this Commonwealth a man so dead to all 
sentiments of honor, so destitute of public spirit, as to say that a per¬ 
son guilty’ of such conduct was fit for a judicial office. So he seeks 
to palliate his offence; and how? By charging the guilt upon the 
leading men of the Republican party in the county of Barnstable: 
he says these leading men came to him and demanded that lie should 
make payments of money for past political services, and that the 
money wrung by him from the officeholders under him was contributed 
by him to party objects, and not applied to his own use. I called 
upon him to. give the names of those leading Republicans. The Com¬ 
mittee will remember his hesitation, how he hung back: he “could 
not remember.” Finally he names Nathan Crocker, who, being dead, 
cannot contradict him. He names a Mr. Keith, who has lost his 
arms by an accident; but he refuses to state the amount, or any im¬ 
pression of his as to the amount he paid him. Finally lie admits that 
that payment might have been merely a contribution on account of 
such accident. He names a Mr. Nickerson ; and, when pressed to 
name something by which we might identify him, he says that he 
cannot remember his given name ; lie can remember nothing about 
him, that Nickersons on the Cape are as plenty as blackberries, and 
there would be no use in our trying to find him. He has not the 
faintest impression of the amount he paid him. 

Pressed further for the names, he gives that of Louis L. Sellew, 
who left the Cape more than twenty years ago, and whom he had not 
since heard of. Of his residence since that time, Judge Da}' could 
give no information whatever. Unquestionably he supposed Mr. 
Sellew to be dead, or that he could not be found. The statement 
was made just as the case was about to close ; too late, as he supposed, 
for Mr. Sellew (even if living) to confront him, and protect his repu¬ 
tation from this vile attack. He swore positively that Louis L. Sel¬ 
lew, being one of the leading men of the Republican party in the 
county of Barnstable, came to him and demanded two hundred dol¬ 
lars for services to the party; and that, without requiring any items 
or any account to be rendered, he paid Mr. Sellew the sum of one 
hundred and forty dollars, of which payment lie never rendered any 
account to anybody. He jeers at Mr. Sellew and the other men 
whom he falsely maligns, and says he supposes it was their “patri¬ 
otism” that led them to make these demands. He knew that his 
statement was to be printed forever to blacken the memory of Louis 
L. Sellew and his children, if any thing he might say could blacken 
their memory. After your adjournment on that day, a gentlemen said 


1882.] 


SENATE —No. 150. 


661 


to me that he knew a Louis L. Sellew who lived in Somerville, whom 
he believed to be the same man. We found he was the same man. 
He came before you ; and 3*011 saw him to be an honest, truthful, in¬ 
telligent man. He said that lie did not desire that the accusation 
should remain on record without some contradiction, and he asked 
leave to state the facts. The facts were, that he never made an}' 
demand on Judge Day for mone}*; that he never asked for two hun¬ 
dred dollars, or an}* other sum. lie said that he saw Judge Day 
before he was appointed collector, and asked him, if he got that ap¬ 
pointment, to appoint him inspector. Judge Day promised him 
squarely that he would. From that time to the day he testified, Mr. 
Sellew never saw nor had any communication with Judge Day. 
After Judge Day’s appointment, and after Mr. Sellew had left Prov- 
incetown, a letter came there directed to him, which was opened by 
his wife, in which was a twenty-dollar bill which he was requested to 
keep on account of the expense he might have been put to on account 
of Judge Day’s breaking his promise. That twenty dollars was kept 
and used by Mrs. Sellew before Mr. Sellew’s return. What, Mr. 
Chairman, was the newspaper report of this testimony which Judge 
Day caused to be sent out to the public? By the way, let mo add 
that Judge Day, when he heard Mr. Sellew testify with an honesty 
and candor which would win even reluctant belief, knowing that he 
could not contradict him successfully, admitted the truth of his state¬ 
ment. He had not the audacity to deny it. The press report of this 
testimony was, that Louis L. Sellew testified that he had only twenty 
dollars of the money. Not one word of his denial that he made a 
demand for money ! Not one word of Judge Day’s admission that 
his own statement was untrue ! Not one word to vindicate Mr. Scl- 
lew from the foul attack Judge Day had made upon him with the pur¬ 
pose of palliating his own guilt, and shielding himself from the just 
indignation of a people who have borne him already too long. J say 
I believe that false report to have been instigated by Judge Day. I 
cannot believe that in this Commonwealth there is one man base 
enough to misrepresent Mr. Sellew’s testimony, and leave such a 
stain upon his reputation gratuitously. I cannot believe, that, with¬ 
out some consideration from Judge Day, any man who heard and saw 
Louis L. Sellew, and heard Judge Day confirm him, could so wickedly 
misrepresent the testimony. 

Mr. Chairman and gentlemen, the office which Judge Day holds 
is one of great responsibility and great powers. In the hands of a 
judge of probate rest the settlement of the estates of deceased 
persons ; the appointment, the control, and the removal of all adminis¬ 
trators, executors, guardians, and trustees; all questions relating 
to the adoptipp of children, relating to the change of names, 


662 


HEARING — JOSEPH M. DAY. 


[April, 


relating to the specific performance of contracts made by deceased 
persons, or by persons who afterwards are put under guardianship ; the 
committing: and discharge of lunatics to and from the State lunatic 
asylums ; the committing of young criminals, both male and female, 
to the State reformatory institutions, and their discharge ; the parti¬ 
tion of lands owned by tenants in common, and concurrent jurisdiction 
with the supreme court over the sales of trust estates. In the per¬ 
formance of the duties of his office the judge of probate is brought 
more directly in contact with the people within his jurisdiction than 
are the judges of any other court in the Commonwealth. In his court 
few people seek the aid of attorneys: they rely, and they have a right 
to rely, upon the impartiality, patience, kindness, and integrity of the 
man who fills that high office. In other courts parties are shielded by 
counsel skilled in the use of'legal weapons; in the probate court 
they are defenceless and unprotected. They come generally in cir¬ 
cumstances of affliction when the}* yearn for sympathy, and are most 
exposed to the acts of chicanery. A judge of probate should be, not 
only a man of the highest integrity, but he should be a man upon whom 
there rests not the slightest suspicion of dishonesty, and in whom the 
people over whom he exercises jurisdiction have entire confidence. 
Like Caesar’s wife, he should be above suspicion. Now, the people of 
Barnstable County, or a large part of them, do not believe that Judge 
Day is such a man. They believe him unfit for the office ; and they 
ask for his removal that they may have a judge of probate who has 
their esteem and confidence, — who has not only absolute integrity, but 
who is free from suspicion in that respect. Because, gentlemen, one 
of the indispensable qualifications of a judge of probate is to possess 
the confidence of the community in which he acts. If in any way he 
has forfeited that confidence, it is the right of the Legislature, and a 
right which it is their duty to exercise, to remove him from office. I 
do not think, gentlemen, the evidence in this hearing justifies my 
friend Thompson in his fierce denunciations of the petitioners whom I 
have the honor to represent. Look at what Judge Day has admitted, 
and then ask yourself, judging him upon his own testimony, whether 
you desire such a man to be probate judge in your counties. Had 
any judge of probate in the county of Suffolk confessed of himself 
what Judge Day has admitted in this case, a storm of indignation 
would ere now have driven him to resignation. Had not his resignation 
immediately followed exposure, would not the people of Boston say 
to you, “ Are we to have as judge to settle our estates when we die, 
and to look after the interests of our widows and orphans, a man who 
virtually confesses, that, in violation of written and unwritten law, he 
sold all the offices in his district? ” Had it happened in this county 
instead of the county of Barnstable, the representations of the city 


1882.] 


SENATE —No. 150. 


668 


press would have been of a very different character from what they 
have been here. I submit that the county of Barnstable, though 
she has, as nry brother Thompson says, only thirty thousand inhabit¬ 
ants, and is not rich enough to support many lawyers, should have 
a judge of probate to the full as honest, to the full as free from 
suspicion of dishonesty, as the great county of Suffolk, or any other 
county in this State. The question before 3011 , gentlemen, is whether 
the public good requires the office of judge of probate in the county of 
Barnstable to be vacated. We ask, that to the consideration of that 
question you shall bring the candor, the fairness, and the freedom 
from prejudice which I believe you are willing to bring, and which it 
is your duty to give us. 

My brother Thompson has alluded to the question of constitutional 

power, and upon that I want to say one word more. The right of 

. 

removal by address is entirely distinct from the right of impeachment. 
In impeachments there are specific charges of misconduct in office 
made, there is a trial before the Senate, and a finding of guilty or not 
guilty upon those charges. In the case of removal by address, there 
is no such thing, and there can be no such thing. It is the simple 
exercise of the will of the Legislature that the office shall be vacant. 
And when my brother Thompson speaks of the declarations made in 
the Constitutional Convention of 1820 being contemporaneous declara¬ 
tions as to this right and its breadth, I sa} r that he condemns himself. 
A careful study of the speeches of the members of that convention will 
show that every one of the members who spoke upon the subject believed 
the right of removal of judges by address, with or without reason, to 
be unlimited. It may be and is exercised simply at the will of the 
Legislature. An attempt was made to change the Constitution so as 
to require a notice and hearing, it being alleged that it was unfair 
to allow the Constitution to remain so that a man could be removed 
without notice and without a hearing. That effort failed. The Con¬ 
stitution remains as it then was. No evil consequences have resulted 
from this unlimited constitutional right. I again repeat that there was 
not in that convention the expression of an opinion contrary to our 
claim that the Legislature with the Governor and Council at any time, 
for any cause, or without cause, can remove any judge by address. 

There are certain grounds upon which Judge Day’s removal is asked 
which might sustain impeachment. But those grounds will not be 
voted upon by the Legislature. There will be nothing in the records 
of the Legislature to show the reasons which actuate the members in 
voting for the address. The entire Legislature may vote for the 
address, although they do not believe a single charge has been proved, 
upon the ground that a man should not remain in that office against 
whom there was so much opposition and suspicion. The fact that the 


664 


HEARING —JOSEPH M. DAY. 


[April, 


Legislature has voted for his removal will show nothing of their 
reasons. The record will only show, that, for some reason, they wish 
the incumbent to go out of the office. The charge against Judge Day 
of corrupt conduct in a federal office, which was denounced as scan¬ 
dalous and impertinent by my friend Thompson, is not a subject for im¬ 
peachment, for it was not misconduct nor malfeasance in the office of 
judge of probate. But it shows the character of the man, and his un¬ 
fitness for a judicial office. It is evident he cannot retain the confidence 
of the comm unit}* in which he lives, and that he should be removed by 
address. We maintain that such a loss of confidence not only justifies 
but requires the removal of a judge. Suppose a judge of probate, 
or an}’ other judge, belongs to a club ; that he gambles at the club, 
and is caught cheating at cards ; that he is compelled to resign, or to 
be expelled. That is not misconduct in office : it is nothing for which 
he can be impeached; yet the character of the transaction would 
so affect the reputation of a judge that it would be the duty of the 
Legislature to remove him as unfit for the office. Take another 
illustration. Suppose a judge to have committed a crime in a distant 
state or a foreign country, which proved his character to be rotten to 
the core, should not the judicial ermine be stripped from his shoulders? 
The only question for you to decide is, whether, on the whole, the 
public good demands the removal of Judge Da}', or that he should 
continue to hold that high office against the wishes of a large portion, 
a respectable portion, of the people of the county in which he lives, 
whose confidence he has forfeited. Let me say as to these numerous 
remonstrances which have been filed with you, that they were headed, 
or were understood to be headed, by a gentleman well known in 
Barnstable County, by Major S. B. Phinncy, a gentleman — 

Mr. Thompson. They were not headed by him. 

Mr. Wadleigh. Well, it was understood that they were, and that 
he approved of Judge Day’s conduct, and disapproved of the effort to 
remove him. Now, I need not say to you what the position of Major 
Phinney is in the county of Barnstable. Although I have lived nearly 
all my life in another State, and have differed with him in political 
opinions, I have always known his reputation as an able and high- 
minded man*. When it was represented to the citizens of Barnstable 
County that Major Phinney, whom everybody respected, and who was 
the acknowledged leader of the Democratic party there, had signed 
the remonstrance, of course everybody felt that they might properly 
do so. They knew nothing about the bribery, which had not then 
been disclosed. There might have been some faint rumors of it float¬ 
ing through the air, without consistency or form ; but men seldom 
guide their conduct by such rumors, and Major Phinncy’s indorse¬ 
ment of Judge Day had immense influence. But Major Phinney has 


1882.] 


SENATE — No. 150. 


665 


been before yon, and given 3*011 to distinctly understand that he 
bclie\es the deposition of David Burslc3*, that he does not indorse 
Judge Da} T s conduct while he was collector of customs, and that he 
does not consider him a reliable man. 

^ on remember, that, when asked in reference to David Bursley’s 
character, he said it was not questioned, except b}' men who were not 
reliable ; and, when pressed bj* 103" brother Thompson to sa3* who 
those men were, lie named Judge Da3*. Lie requested that his name 
might no longer appear at the head of those remonstrances. He dis¬ 
claimed having emplo3*ed anybody to appear in his behalf. Now, 
gentlemen, I ask 3*011, is it unreasonable to suppose that the gentle¬ 
men who signed those remonstrances led b3* the influence of his 
name, if the3 r were to come here as he did, would express to 3*011 
their changed sentiments in the same way? I believe, that if those 
remonstrants had come here as Major Phinne3* did, that long list 
of names would have melted into thin air, leaving less than a cor¬ 
poral’s guard upon that remonstrance. Why should they not feel as 
Major Phinney felt when Judge Day’s corruption was disclosed to 
him and to the public? Why should the3* not also feel, after hearing 
the testimony which convinced Major Phinne3 T , that Judge Da3 T should 
no longer act in the office of judge of probate for the county of 
Barnstable ? 

Now, gentlemen, I proceed to the specified grounds upon which 
this removal is asked. And I propose to take them, so far as I am 
able, in chronological order, beginning with the earliest and coming 
down to the latest. The first which I consider is his giving advice 
with reference to the proper construction of the will of Daniel 
Cummings in 1858 . That case briefly is this: Joseph Cummings 
and his brother were joint executors of their father’s will. A con- 
troversy arose concerning the proper construction of a certain clause 
in that will. The3 r agreed to refer the question in dispute to Judge 
Day, who was then judge of probate. He gave them advice, charged 
them five dollars for it; and the brothers paid it as individuals, I think. 
Joseph Cummings, who was called as a witness, says it did not go into 
his account. That is a fair statement of this case. I do not believe, 
that, if this were the only case, it would furnish any ground whatever 
for Judge Day’s removal. It is not within the letter of the law, 
because the will was proved before Judge Marston, Judge Day’s 
predecessor. It may perhaps to some extent be within the spirit of the 
law, and I think it is. The law evidently intends that a judge shall 
not put himself into a position where he cannot act impartially as 
required by the Massachusetts Bill of Rights. It appears that the 
estate had not been settled. It w*as barely possible that some ques¬ 
tions concerning the division and distribution of the personal property 


666 


HEARING —JOSEPH M. DAY. 


[April, 


belonging to the estate might depend upon the construction of the 
will. I think he displayed a readiness to put himself in a position 
where he could not act impartially as between suitors in his court. 

The next ground set forth relates to the case of Noble P. Swift; 
and in this connection I desire to read the law which my brother 
Thompson has read, and refer to the Bill of Rights of this Common¬ 
wealth. The Bill of Rights declares, that “it is the right of every 
citizen to be tried by judges as impartial as the lot of humanity will 
admit,” and the duty of every judge is to so act that he may meet 
that requirement of that. Chap. 119 , sect. 6 , of the General Statutes, 
is in these words : — 

“ No judge shall be retained or employed, as counsel or attorney, either in or 
out of court, in any suit or matter which may depend on, or in any way relate 
to, a sentence, decision, warrant, order, or decree made or passed by him; nor for 
or against an executor, administrator, or guardian appointed within his jurisdic¬ 
tion, in a suit brought by or against the executor, administrator, or guar¬ 
dian, as such; nor in a suit relating to the official conduct of such party; nor 
for or against a debtor, creditor, or assignee, in a cause or matter arising out 
of or connected with any proceedings before him; nor in an appeal in any such 
cause or matter.” (Codified in chap. 158, sect. 21.) 

Now, gentlemen, a fair and lucid statement of the undisputed facts 
in this matter of Noble P. Swift may be found on pages 12 and 
13 of the report of the minority of the Committee last }’ear. I 
will read it: — 

“ The facts relating to the fourth charge are, that Judge Day acted as sole 
counsel for Noble P. Swift in the Superior and Supreme Judicial Courts, in a 
case brought by Emily Harrison fora breach of marriage contract, which.re¬ 
sulted in a judgment of fifteen hundred dollars’ damages, and which w r as argued 
upon exceptions in October, 18G6, and finally decided on the twenty-second day 
of that month. In March, 1867, voluntary proceedings in insolvency were com¬ 
menced by Swift before Judge Day, through which his estate was settled, and 
he was discharged. Emily Harrison, not having taken out her execution, 
appeared as a creditor, seeking to collect the claim from which Swift was seek¬ 
ing a discharge, and in which, in the other courts, Judge Day had been his 
counsel (pp. 109, 110). It appears that Swift had no counsel in the insolvency 
proceedings (pp. 109, 110). There was evidence indicating that Judge Day had 
received his pay for former services before the filing of the petition, — precisely 
when did not appear, but within considerably less than six months (pp. 117 and 
350). There was other evidence from which Miss Harrison’s attorneys claimed 
that Swift’s insolvency was fraudulent (pp. 109, 113, 117, 393, 394), and they 
filed a formal protest against Judge Day’s sitting in the case (p. 36). Notwith¬ 
standing this protest, he acted as judge throughout the proceedings. 

“Disregarding all suspicions and inferences from these facts, and finding 
that the fourth charge is not proved, and giving to all the evidence the con¬ 
struction most favorable to Judge Day, we feel that his relations to the parties 
and to the questions involved in this case were such as should have prevented 
his sitting in it as judge, and we consider his persistence in so doing a great 
breach of official decorum.” 


I 


1882.] 


SENATE —No. 150. 667 


Mr. Thompson. That was a minority report. 

Mr. Wadleigh. It was the only report which purported to state 
any facts. 

Mr. Thompson. The majority didn’t join in it. 

Mr. Wadleigh. The majority didn’t attempt to state the facts. 
Gentlemen, let me say what will be evident to 3*011 all: that the 
Committee last year made a statement of facts most favorable to 
Judge Day*. They 7 admitted the truth of every thing alleged by him 
or by his counsel. Now, I do not propose to make an} 7 such admission 
here. Let me call the attention of this Committee to two or three 
facts bearing upon his conduct in this matter. Judge Day received 
pay 7 ment of his bill against Noble P. Swift, within the six months 
during which he had no right to pa} 7 his debts, if he supposed he was 
insolvent. Under those circumstances he granted a discharge, know¬ 
ing that his right to grant it depended on Swift’s ignorance of his 
own pecuniary condition when he made that payment. All that 
appears in this case seems to show, that, if Noble P. Swift was insol¬ 
vent when he went into insolvency, he had no reason to suppose 
that he was solvent when he paid Judge Day. There was no evi¬ 
dence that any thing unexpected happened to him ; there is no evi¬ 
dence that there was any change whatever in his circumstances, and 
I think, sir, that the act of Judge Day in granting that discharge 
under those circumstances was a gross outrage on judicial propriety, 
and would alone justify his removal. More than all that, I want to 
call the Committee’s attention to the significant facts which appear 
in reference to the claims proved in that case. 

The only evidence of Noble P. Swift’s insolvency consisted in 
claims against him to a large amount held by his relatives. Those 
claims were in the form of notes of widely different dates. At the 
hearing before Judge Day, it was contended on the one hand, by Swift 
and his relatives, that the notes produced were made and delivered at 
the time of their respective dates, and not at the same time for loans 
made at the time of their respective dates. It was contended on the 
other hand, by the attorneys of Miss Harrison, that the notes were all 
made and delivered at one time for the purpose of enabling Swift to 
go into insolvency, and to cheat her out of a large part of the judgment 
she had obtained against him. The edges of the notes were jagged 
as though torn by a paper-cutter; and it was found that those jagged 
edges all exactly fitted each other, showing conclusively that they 
had been made on the same sheet of paper, and torn apart. This fact 
is testified to by Attorney-General Marston and Mr. King, Miss Harri¬ 
son’s attorneys, and by Mr. Higgins who was present, and is not now 
disputed. It was an absolute demonstration of the fraudulent char¬ 
acter of the notes. My brother Thompson says, the edges might 


668 


HEARING —JOSEPH M. DAY. 


[April, 


have fitted if they had not been torn apart. Why, gentlemen, if 
Adam had commenced tearing such sheets of paper in the Garden of 
Eden, and all his descendants had done nothing else from that day to 
this, it. is next to impossible that the edges of two pieces would 
ever have fitted, had they not previously been torn apart. The 
slightest knowledge of the laws of permutation will convince any one 
of that impossibility. 

The mute testimony of those jagged edges would have been con¬ 
clusive proof of the fraudulent character of the notes in any court in 
Christendom, except Judge Day’s. Yet he allowed the notes, and 
granted to Noble P. Swift a discharge from his debts. 

The Chairman. What do you say, Mr. Wadleigh, to the fact that 
nobody appealed from the decision ? 

Mr. Wadleigh. I suppose an appeal was not taken because the 
evidence to sustain that appeal (conclusive as it was) could so easily 
be destroyed. The relatives of Mr. Swift, who held the notes, were 
entitled to keep them, unless the}’ were taken and kept by Judge Day 
upon the motion of Miss Harrison’s counsel that they should be 
impounded. If the attorneys of Miss Harrison had believed Judge 
Day to be an honest man, they would undoubtedly have advised an 
appeal; but his conduct had convinced them that he was not. The 
slightest tampering with those tell-tale edges would destroy them as 
testimony, and the evidence of their original condition must come 
from Miss Harrison’s attorneys and Mr. Higgins. Respectable 
attorneys dislike to advise legal proceedings which must be sustained 
by their own testimony. Doubtless Miss Harrison’s counsel advised 
her that she might expect the edges of the notes would be tampered 
with before a trial upon an appeal, and that Noble P. Swift and his 
relatives, and Judge Day, who had been Swift’s counsel, might be 
expected to testify to any thing to sustain the fraud, and cheat her 
out of her judgment. 

The notes were produced upon the hearing before the legislative 
Committee last year, and, on examination, were found to have been 
tampered with. The edges no longer fitted together. By whom 
that change was made, there is no evidence. The evidence does show 
that the notes had been impounded by Judge Day, and doubtless 
the} r had been kept in his court. 

As to Judge Day’s claim that it was his bounden duty to act as 
judge in the insolvency proceedings of Noble P. Swift, I wish to call 
the attention of the Committee to chap. 119 , sect. 3 , of the General 
Statutes. I read, — 

“ The judges may interchange services, or perform each other’s duties, when 
they find it necessary or convenient.” 



1882.] 


SENATE —No. 150. 


G69 


Tt should have been necessary and convenient for Judge Day to 
call in some impartial judge from another county, who had not been 
counsel for Swift, who was not hostile to Miss Harrison and her 
claim, and whose relation to the case did not justify the suspicion of 
corruption. 

My brother Thompson is much mistaken in his suggestion that it 
was not contended before Judge Day that the notes held by Noble P. 
Swift’s relatives were without consideration. Let me on that point 
call your attention to the declaration of Attorney-General Marston. 
Upon cross-examination he said,— 

“We had a judgment against a good defendant at anytime, if lie hadn’t 
‘jewed ’ us out of it by fraud.” 

Mr. Thompson says no objection was made to the discharge of 
Noble P. Swift by Judge Day. What was the use of making an 
objection to his discharge before Judge Day? Could any respectable 
counsel encourage a client to undertake the hopeless task of prevent¬ 
ing Judge Da)* from granting a discharge? 

I come now, gentlemen, to the case of Eleazer Nickerson, admin¬ 
istrator of Seth T. Nickerson ; and the statement of the Committee of 
last year upon the facts in that case may be found on the tenth and 
eleventh pages of their report: — 

“Under this first allegation it was proved, and not disputed, that a suit was 
brought for wages in the District Court of the United States against the schooner 
‘Benjamin English,’ which was a part of the estate formerly of Seth T. Nick¬ 
erson, deceased, then held by his administrator, Eleazer Nickerson, and that 
this suit was defended by Judge Day as counsel for the administrator. His 
violation of law and disregard of duty were brought to Judge Day’s attention 
at the time ; but he persisted in acting, and, the estate being insolvent, he 
subsequently issued an order, as judge of probate, directing the payment, 
among other things, of his own charges for services at the trial. We understand 
him to make to this allegation the purely technical answer that the suit was a 
proceeding in rem, not brought against the administrator, but against his prop¬ 
erty, and so not within the letter of the statute. But, although in its inception 
the proceeding was in form against the vessel, it was in substance a suit against 
the administrator. It was brought to collect a debt secured on his property; 
and, from the time he appeared to defend, it was carried on against him as a 
party. 

“ If the statute can be nullified by the narrow construction given it by Judge 
Day in its application to this case, which we do not concede, his act was none 
the less a violation of its spirit and an offence against propriety.” 

I have little to add to that statement. When the suit was brought 
against property which belonged to the administrator as such, and 
upon which he was bound to administer, it was his duty to contest 
that suit if he believed it to be unfounded. The suit was practically 
against himself. If the suit had been against him in form, the judg- 


HEARING —JOSEPH M. DAY. 


670 


[April, 


ment would not have been against him personally, but against the 
property belonging to the estate held by him as administrator. 

So far as he and the estate were concerned, the suit stood upon 
precisely the same ground as though he had been the original party 
to it, with one exception, which in this case could have led to no 
practical result. Had this suit succeeded, he would have been liable, 
as administrator, for costs ; and the claim itself would have been col¬ 
lected out of the property belonging to the estate against which the 
suit was brought, and not out of the general property of the estate, 
as would have been the case if the suit had been brought against 
him as administrator. Mr. Thompson feels that he cannot success¬ 
fully combat this case, and attempts to palliate Judge Day’s conduct 
by, alluding to his small salary, and suggesting that judges should 
not be condemned for mere errors in judgment. I do not propose to 
discuss those matters here, but in another connection. 

I now come, gentlemen, to the case of Bradford L. Crocker, which 
is, I think, the next in date, being in 1870 . Bradford L. Crocker 
and one Nye were executors of the will of Betsey Kelley. Mr. 
Crocker had some doubt as to his duties as executor, went to Judge 
Day for advice, and finally paid him five dollars for such advice. He 
produces his cash-book, showing the payment and its date, which was 
the last day of December, 1870 . He says that payment was put into 
his account as executor, and allowed by Judge Day. Judge Day 
says there was a controversy between the two executors as to the right 
of one of them, Mr. Nye, to remove a barn belonging to the devisees 
under the will, and that his advice was given to Mr. Crocker in refer¬ 
ence to that matter. 

If Mr. Crocker went to Juds^e Dav for advice as to what he should 
do as executor, and was advised that he had no right to do anything, 
Judge Da } 7 had no more right to receive payment for that advice than 
if he had advised him he could do something. Mr. Crocker was 
entitled to get such information for the benefit of the estate and at its 
expense, — not from Judge Da} 7 , however, — and he had the right, 
after getting that information, to put the sum he paid for it into his 
account. According to my brother Thompson’s argument, Judge 
Day had the right to be counsel for the executor in any case where 
the executor could not act. If he only tells him, “ Why, your duty 
as executor in this matter is to do nothing,” then he has a right to 
charge pay for it as counsel. But, gentlemen, is not Judge Day’s 
conduct equally in contravention of the statute whether he counsels 
an executor to act or to neglect to act? He had no right to give 
counsel at all and to receive pay for it. He had no right to act as 
counsel for the executor at all. 

To show that he advised Mr. Crocker in reference to the real 


1882.] 


SENATE —No. 150. 


671 


estate, Judge Day proves, that, as attorney for the Evangelical 
Society, he prosecuted suits against the parties claiming the land, of 
whom Mr. Nye was one. Upon that point we say that Judge Day’s 
conduct in prosecuting those suits is in violation of the statute. 
Judge Day approved the will under which the Evangelical Society 
held that land. Those suits had no other foundation than the will, 
and his decree approving it; and his conduct was in flagrant viola¬ 
tion of the statute, because he acted as attorney in court in suits and 
matters which depended upon and related to his own decree. 

It is said that we do not bring the account of Mr. Crocker, showing 
the payment ol the five dollars to Judge Da}'. We brought here all 
• the papers which could be found on the files of Judge Day’s court. 
Those papers showed, that, when Mr. Crocker rendered his first 
account, he filed a bill of items ; and that was after this payment of 
five dollars had been made. That bill of items unquestionably showed 
that payment, and to whom it was paid ; but it is now missing from 
the files of the court, and cannot be found. It has been practically 
in Judge Day’s custody, and it is not to be found. 

I come now to the case of Varanus B. Nickerson. A petition was 
filed in insolvency against Varanus B. Nickerson. Debts were proved 
against the estate, and Ebenezer Bacon was appointed assignee. 
The assignee accepted the trust, and warrant of appraisal was issued. 
Warrants for a second meeting of the creditors were issued and 
returned, and the meeting was held. A petition to stay proceedings 
in the case was filed May 2, 18G5, and returned May 16, 1865. There 
is some confusion about the dates: it may have been in June, 
instead of May. The exact date is immaterial. Upon that petition 
Judge Day decreed that the proceedings be vacated and stayed. 
Afterwards a suit w r as brought in behalf of Varanus B. Nickerson, 
and in his name, by Judge Day, against one Crowell, upon a policy 
of marine insurance for a loss which happened in 1861. The defend¬ 
ant in that suit pleaded in defence the assignment in bankruptcy, 
and that by that assignment the right of action passed to the defend¬ 
ant’s assignee. To that plea the plaintiff replied, through Judge 
Day, his counsel, that the proceedings in insolvency had been vacated 
and stayed, setting up the decree. Now, that was in direct violation 
of the statute to which I have already referred. He was acting as at¬ 
torney for Mr. Nickerson, in a matter which related to, and depended 
on, a decree of his own. If that decree had not been pleaded, the 
record would have shown no cause of action against Mr. Crowell in 
behalf of Mr. Nickerson. That action rested upon the decree vacating 
and staying the proceedings in insolvency; for, without such decree, 
the assignees alone could have prosecuted it. This conduct of 
Judge Day was in direct violation of the letter and spirit of the 


672 


HEARING —JOSEPH M. DAY. 


[April, 


law. The law evidently intends to prevent judges of probate set¬ 
ting up as attorneys, for the benefit of their clients, their own judicial 
acts. 

Gentlemen, there is no evidence that the decree to vacate and stay 
proceedings was not made by Judge Day with an expectation of act¬ 
ing as counsel for Mr. Nickerson in bringing the suit against Mr. 
Crowell. What the circumstances were we know not; and Judge 
Day cannot sa} T , that, although he violated the letter of the law, he 
did not violate its spirit. His conduct directly violated both its 
letter and spirit. Nor is there any force in the argument, that, by 
the decree vacating proceedings, all the previous proceedings were 
wiped out as though they had never been. Whatever the assignees 
had done before that decree was not invalidated by it. 

I now come to the case in which Enos Young and Reuben Young 
were parties in 1873. There was in that case a petition for parti¬ 
tion. The petitionee, it seems, communicated to the judge of probate, 
before the time when the petition was returnable, important facts 
bearing upon his case. He gave to Judge Da} T the copy which had 
been served on him ; and, when the petitioner came before Judge Day, 
he dismissed the petition upon information privately received from 
the petitionee. Immediately afterwards, he appears as attorne}* for 
the same party in the Superior Court. I admit, that if this charge 
stood alone, and Judge Day’s conduct in other respects had been 
blameless, I should attach little weight to it. 

Yet 1 think the people of Barnstable County have a right to com¬ 
plain of a judge who receives, in regard to a matter pending before 
him, information from one of the parties behind the other’s back, 
upon which he dismisses, on his own motion and without hearing, 
proceedings pending before him, and who immediately afterwards 
appears as counsel for the party in whose behalf he dismissed those 
proceedings. It seems to me it would have been more appropriate 
that the parties should have come before him and been heard. It is 
not an answer to say that in that case he did what was right. Sir, 
is a judge of probate to be allowed to act partially because the party 
for whom he acts happens to be in the right, or because it is not 
proved that he was in the wrong? He has no right to act as counsel 
for parties in his court, whether they be right or wrong; because the 
litigant who happens to be in the wrong is entitled to an impartial 
tribunal. The conduct of Judge Day in this case was suspicious and 
improper. 

I come now to the case of Isaiah Gifford. Mr. Gifford was ap¬ 
pointed guardian of Mary Stid by Judge Day about the year 1873. 
The circumstances under which he was appointed were very peculiar. 
Mary Stid was a widow. Her husband was well known to Judge 



1882.] 


SENATE —No. 150. 


673 


. Lefore her husband’s burial she became insane, and Mr. Gif- 
foid was appointed her guardian. There was no administration upon 
the estate of the husband, and she was his sole heir. Any claim 
against his estate was, in fact, a claim against her. About two y’ears 
after Mr. Gifford’s appointment, a note against the estate of the hus¬ 
band was presented to Mr. Gifford for payment. It was the duty of 
Mr. Gifford, as her guardian, to take counsel as to what he should do. 
He accordingly 7 , as her guardian, employed Judge Day as attorney 7 , 
to settle the claim, for which he charged the sum of $30.06. That 
amount was charged in Mr. Gifford’s account as guardian, and was 
allowed by Judge Da}’. Judge Day’s answer to this, as I under¬ 
stand it, rests upon a matter of fact and upon a matter of law. He 
in the first place says that he did not know that Mr. Gifford was 
guardian of Mary Stid. In view of the general character of his 
testimony in regard to other matters, I feel at liberty to say that I 
do not believe his statement in regard to this. He admits that he 
knew Mr. and Mrs. Stid, and what his estate was. 

The fact that she became insane before her husband’s burial was 
a circumstance so extraordinary and so notorious that Judge Day 7 
could not have forgotten it. 

Mr. Gifford was well known to Judge Day’, and he gave him his 
appointment as guardian. It is absolutely 7 incredible that, after Mr. 
Gifford had acted two years as guardian, Judge Day could have 
carried on the negotiations which resulted in the settlement of the 
claim without learning Mr. Gifford’s relation to Mary Stid. I need 
not say that his conduct was in violation of the law, both in letter 
and in spirit. 

The argument of my 7 brother Thompson, that, as the claim was 
nominally against the estate of the deceased husband, Judge Day 7 
could properly’ act as counsel for the guardian in adjusting it, seems 
to me no valid answer to this charge. As the claim against the 
husband’s estate affec:ed the interests of the ward, it was the guar¬ 
dian’s duty’ to look after it. And Judge Day had no right to act as 
his counsel. 

I now come to the case of the will of Jonathan Kelly in 1876. 
The will was proved before Judge Marston—Judge Day’s predeces¬ 
sor— about the 9th of March, 1858. Elizabeth Kelly’ was legatee 
and executrix. After his death, without having settled her account 
as executrix, David K. Aikin, who was acting for her heirs, and who 
was immediately’ afterwards appointed administrator of her estate, 
employed Judge Day as counsel in regard to the legal construction of 
the will of Jonathan Kelly. 

Judge Day 7 gave a written opinion in favor of the heirs of Eliza¬ 
beth lyelly, for whom Mr. Aikin was acting, and against the minor 


674 


HEARING —JOSEPH M. DAY. 


[April, 


children of Susannah Kelly, who claimed real and personal estate 
under the will. For that opinion Judge Day charged, and Mr. 
Aikin paid him, ten dollars, which was afterwards put into Mr. 
Aikin’s account as administrator, and allowed by Judge Da}’, though 
he required his own name to be erased from the account. His sensi¬ 
tiveness as to the appearance of his name indicates that he was aware 
of the impropriety of his conduct. 

The minor children of Susannah Kelly, against whom Judge Day 
acted as counsel, appear to have taken no steps to maintain what 
they believed to be their rights. Perhaps they were discouraged by 
the opinion of the judge. 

Perhaps being by law under the care of the judge of probate, they 
did not care to excite his hostility and dislike by attacking the cor¬ 
rectness of his judgment. 

Perhaps their guardians, appointed by Judge Day, and acting 
under his supervision and control, are overawed by his being counsel 
against these minor children, and refrain from prosecuting their claims. 
It was a gross outrage on judicial propriety for Judge Day to put 
himself into a position from which such consequences might result. 

In the case of Ambrose N. Doane, administrator of the estate of 
Joseph C. Lawrence, it appears that he took counsel of Judge Day 
in reference to his duties as administrator, though there is some un¬ 
certainty whether he paid him therefor. A suit was pending against 
Mr. Lawrence at the time of his death, in which Judge Day was his 
counsel. Mr. Doane is not aware that his intestate owed Judge Day 
any thing except for services in that suit. Judge Day carried in a 
bill of twenty-five dollars for “ legal advice,” which Mr. Doane paid. 
It is evident that Judge Day’s services in that suit could not have 
amounted to that sum ; but he claims that the deceased owed him 
eighty dollars for services in that and other matters. The indefinite 
character of the bill seems, in connection with the circumstances, to 
warrant a suspicion, that, as in the Goodspeed case, the bill was made 
to cover services rendered to the administrator. But I frankly admit 
that the case is not proved. 

I come now to the case of Samuel Snow, guardian of Ada Stevens ; 
and I desire to call the attention of the Committee to the statement 
of facts made by the Committee last year, upon p. 13 of their re¬ 
port : — 

“Under the sixth charge, it was found that Judge Day took from Samuel 
Snow, guardian of Ada Stevens, ten dollars for advice and assistance in pro¬ 
ceedings in his own court for the sale of certain real estate as guardian (pp. 84- 
87). Whether it be claimed that he acted as judge, or as counsel for the guar¬ 
dian, or as counsel for Morse and Holmes, who bought the estate, his conduct 
was illegal.” 


1882.] 


SENATE —No. 150. 


675 


Now, Judge Da}’s excuse, as I understand it, is, that these services 
were rendered for Morse and Holmes. His story is, that, when Mr. 
Snow came to him, he supposed the advice he gave was for the bene¬ 
fit of the ward ; that, when lie found Morse and Holmes were concerned 
in it, he was very indignant, and his indignation was so strong that he 
charged the sum which he did charge: and it appears that Morse and 
Holmes paid it. The statement of the Committee which I have read 
is entirely correct. I can add but little to it. Judge Day was coun¬ 
sel for somebody in that matter. He was counsel, either for Samuel 
Snow as guardian, or for Morse and Holmes against the guardian. 
And, whether it be one or the other, he was acting in direct violation 
of the statute. M}" brother Thompson argues here, as in some other 
cases, that, if Judge Day was on the right side of the case, he is ex¬ 
cusable. I submit, Mr. Chairman, that it is not quite sufficient for 
a judge of probate who acts in violation of law as counsel, to be able 
to convince this tribunal or any other that he happened to be on the 
right side. The law forbids his being counsel. He is to be impar¬ 
tial, and should not act as counsel in such cases at all. In con¬ 
nection with this case, my brother Thompson indulges in a great 
many scriptural allusions, which indicates a familiarity with that book 
which few of us have. Mr. Snow, who is one of the most respecta¬ 
ble gentlemen on Cape Cod, or in the State of Massachusetts, who 
has the confidence and esteem of all who know him, who has re¬ 
ceived political honors from the people among whom he lives, is com¬ 
pared by my brother Thompson to Joab, and is called a black-hearted 
rascal who is guilty of murder in his heart — 

Mr. Thompson. No, no : I said that such tempers breed murders. 

Mr. Wadleigh. I accept the amendment. Upon Judge Day’s 
own confession he was guilty 7 " of bribery. He sold all the offices in 
his collection district, and finally the office of collector itself. Sup¬ 
posing there were no other facts in this case, would it not be Mr. 
Snow’s duty as a public-spirited citizen of Barnstable County to ask 
for the removal of such a judge? He tells you that he has no per¬ 
sonal hostility to Judge Day, and that his position in this matter 
results from the feeling he has as a citizen of Barnstable County, hav¬ 
ing its welfare at heart. Major Phinney now (if his testimony is any 
index to his feelings) feels exactly as Mr. Snow does. When the 
facts come to their knowledge, I venture to say that three-fourths of 
the remonstrants, at least, would approve of Judge Day’s removal. 

Mr. Thompson. Who was Mr. Snow acting for, Morse and 
Holmes, or Ada Stevens? 

Mr. Wadleigii. Acting as guardian for Ada Stevens, and Judge 
Dav had no right to act as counsel in the case at all. 

I come now, Mr. Chairman and gentlemen, to the case of Mary M* 


676 


HEARING —JOSEPH M. DAY. 


[April, 




Goodspeed in 1880. Levi L. Goodspeed, a citizen of the county of 
Barnstable, died, leaving a widow, who was appointed his administra¬ 
trix, and two minor children. Mr. Whitman was appointed guardian 
of one of those children, and Mary 7 M. Goodspeed the guardian of the 
other. Some negotiations with Col. Proctor took place, relating to 
the sale of the property belonging to the estate. No license had 
been granted to sell the property". The Goodspeeds went to Judge 
Day, and he acted as counsel for them. He drew up an agreement 
by which the property" was to be sold at a certain price, and thus 
bound himself to license the sale of that property" in advance of any 
hearing. The agreement drawn by' him was signed by 7 the parties. 
Difficulties arose under it, and in the course of those difficulties they 
relied on the advice of Judge Day as counsel for them. They had 
for a long time no other counsel. He gave advice to Mr. Snow, who 
was acting as their agent. Mr. Snow testifies that he looked upon 
Judge Day" as their attorney. Charles F. Goodspeed swears that he 
alway's supposed he was acting in that capacity, and that he paid 
him as counsel for his mother and brother as well as for himself. 

Mr. Thompson. No capacity’: he does not say T that. 

Mr. Wadleigh. That is ny memory 7 ; and he says he had no con¬ 
ferences with him, except upon matters growing out of his father’s 
estate. When the proceedings of last year were about to be com¬ 
menced against Judge Day", he informed them that they must get 
counsel; and they" employed some one else. But up to that time they f 
had no counsel but him. Charles F. Goodspeed wanted to pay him 
for his services as counsel. Judge Day 7 charged him fifty dollars ; 
and he paid it, receiving the following receipt: — 

Barnstable, Oct. 21,1880. 

Received of Charles F. Goodspeed fifty dollars in full of all demands to date. 

(Signed) J. M. DAY. 

Judge Day now contends that that bill was for advice given to 
Charles F. Goodspeed alone, and concerning his sole interests ; that 
it had no reference whatever to this controversy with Col. Proctor; 
no relation whatever to the interests of Mary M. Goodspeed, or her 
other minor child ; that Charles F. Goodspeed alone was charged 
with it, and that he paid it for himself alone. That is Judge Day’s 
story. Charles F. Goodspeed testifies to one fact which conclusively 
shows Judge Day’s story to be untrue. He says, that, when he paid 
that fifty dollars, he asked Judge Day how it should be divided. 
Judge Day replied that he and his brother should pay twenty dollars 
each, and his mother should pay ten dollars. This fact Judge Day 
does not attempt to deny nor explain, but says he cannot remember 
it,—the “ non mi ricordo” of Queen Caroline’s trial. That fact, 



1882.] 


SENATE —No. 150. 


677 


thus uncontradictcd, entirely destro} T s Judge Day’s testimony and 
theory in this matter. It shows that the form of his receipt was 
cunningl}' devised to conceal his acting as counsel for the mother and 
brother, and that he knew his conduct to be improper and unlawful. 
That deception only makes his conduct more reprehensible. 

The last ground under the first charge is his action in 1881, in 
the case of Nathan Crocker, administrator of the estate of Nathan 
Crocker, in a matter before the commissioners of the county of Barn¬ 
stable, in which the town of Barnstable was a party. The statement 
of the Committee of last year in regard to that matter may be found 
on p. 11 of their report. 

Mr. Thompson. The statement of the Committee of last }*ear, of 
course, is of no account here ; although he puts it in his argument. 

Mr. Wadleigh. I read that statement: — 

“The charge of acting as counsel against Nathan Crocker was admitted in 
the answer (p. 32). This administrator was dissatisfied with the assessment of 
taxes made upon the estate in his charge. He accordingly brought suit in his 
official capacity by an application to the county commissioners for an abate¬ 
ment in the manner provided by law. The county commissioners in such cases 
act judicially and constitute a court. Judge Day appeared as attorney for the 
town, to defend the suit (pp. 49, 51). His action in so doing was strictly within 
the statute prohibited. Certainly it was within the mischief which the statute 
was intended to prevent. He voluntarily put himself in a position of partisan 
opposition to the administrator whose charges and expenses in that transaction 
he must afterwards consider as judge.” 

Now, my brother Thompson says that Judge Day did not appear 
as counsel in that matter. He also argues that the county com¬ 
missioners were not a court, and that the proceeding before them 
was not a suit. 

Mr. Thompson. Certainly I do: most assuredly I do. 

Mr. Wadleigh. I have but a word to say upon the extremely 
technical points made by brother Thompson, that the county commis¬ 
sioners were not a court, and the proceeding before them was not a 
suit. According to legal authorities, a suit is the prosecution of some 
demand or claim in a court of justice ; and a court is a tribunal which 
decides, judicially, matters submitted to it by law. The object of 
the statute was to prevent judges of probate from acting as counsel, 
either for or against persons who are under their control. Judge 
Da}'’s conduct in this case violated the spirit ol the law. 

The attempt of Judge Day to escape upon such a narrow techni¬ 
cality ought not to succeed. If lie is disposed to construe the statutes 
Govern in" his own conduct in such a spirit, he is unfit lor a judicial 
office. As to his acting as counsel, who knows whether he did or not ? 
Does he deny that he was counsel? In his testimony last year he 
sought to create an impression that lie was not, without di 1 cc11 y den^- 


f 


6:8 HEARING—JOSEPH M. DAY. [April, 

ing it. He says he went before the commissioners, to ask that the 
case be postponed. Now, gentlemen, upon that point, I call your 
attention to the testimony of Nathan Edson, the gentleman who 
hired him to appear there. 

Mr. Thompson. He wasn’t hired. 

Mr. Wadleigh. The gentleman who engaged him to appear there 
says that Judge Da}* acted as counsel, which he had no right to do, 
even if he charged nothing for it. I read from p. 551 of the record 
the testimony of Nathan Edson : — 

“ Q. —I asked you whether you employed him as counsel to act for you. 
A. —We did, before the county commissioners. . . . 

“ Q. (By Mr. King). —Were not questions interposed there by the petition¬ 
ers, and did not Judge Day interpose, and state that counsel were there, and 
say he was there as counsel to look after the case? A. —I believe he did.” 

That is the evidence of Nathan Edson. 

Look, too, at the testimony of Smith K. Hopkins, who testifies that 
Judge Da}* appeared there as counsel. I submit that Judge Day’s 
innuendoes cannot outweigh the testimony of those two witnesses, 
both of whom are his friends and witnesses. 





/ 



388?.] 


SENATE —No. 150. 


679 


TWENTY-FIRST HEARING. 

Green Room, State House, Boston, 
Tuesday, April 11, 1882. 

The Committee resumed the hearing at 5 p.m., Senator Jennings 

^ 1 o 

presiding. 

Mr. Wadleigh. I wish to repeat that the statute makes no dis¬ 
tinction between judges acting as counsel on the right side or the 
wrong side of a case. He was counsel where he had no right to act 
as counsel at all. No one can tell now whether he was on the right 
side, or not. You know nothing about that, and you cannot know 
about it; and we have not endeavored to show that in any case he 
was on the wrong side. 

O 

The only question for you to try is, whether, in those cases, he had 
the right to be counsel. Judge Da}' also contends, that, in cases where 
the payments to him as counsel were allowed by him with the consent 
of the parties interested, no one has any right to complain. But, 
gentlemen, it may be, and probably is, the fact, that parties who were 
dissatisfied with the accounts of executors, administrators, or guar¬ 
dians, on finding that Judge Day was counsel for them, and inter¬ 
ested in such accounts, feared to put themselves into antagonism to 
him, and attack accounts of which his own charges made a part, lest 
in other respects their interests in the probate court might suffer. 
That is one of the inevitable evils of the course he has adopted. His 
counsel contend that he should be excused, because no one dared to 
question his illegal acts, — one of the worst evils resulting from them. 

My brother Thompson says, in reply to all these matters, that 
Judge Day has a small salary, and lives in a small county, and that, 
in the county where brother Thompson lives, there is such a generous 
feeling among the people that they would be inclined to let him act 
as counsel where he has no right to, rather than to hold him to his 
statutory obligations. 

Gentlemen, the salary of the judge of probate for the county of 
Barnstable is fixed by law. No man is obliged to take that office 
and hold it, if its duties performed according to'law are too onerous. 
He can at any time lay that burden down ; and I submit to you that 
the fact that his salary was small has nothing to do with his obeying 
the laws of the Commonwealth. He has no right to violate the laws 
of the Commonwealth of Massachusetts, and act as counsel in cases 
where the statute forbids it, because the salary of the office which he 
chooses to accept is smaller than he thinks he deserves. 


680 


HEARING —JOSEPH M. DAY. 


[April, 


I come now, gentlemen, to the third ground, as to the taking of 
illegal fees by the former register of probate, by the counsel and 
advice of Judge Day’. According to Mr. Thacher’s estimate, these 
fees amounted to some three hundred dollars per year. A dollar was 
charged by’ him in all cases for filling out a petition for administration 
or guardianship, and in various other matters that came before the 
court; although, under the statute of 1879, he had no right to charge 
it. Mr. Thompson takes occasion to denounce Mr. Higgins, because 
he, as he say’s, originated that practice of charging. The facts are, 
that the charge in such cases was formerly only twenty-five cents, 
and was intended to be, and was, only for the purpose of paying the 
necessary postage ; and the twenty-five cents was no more than suffi¬ 
cient for that. Afterwards, under Judge Dav, that sum was increased 
to a dollar. Under his administration Mr. Higgins was register, and 
that practice went along until 1879. This charge of a dollar may 
not have been in violation of the statute prior to 1879, because it 
was not taken by the register in his official capacity. There was 
then some room for discussion on that question ; but in 1879 a new 
law was passed as follows (chap. 292, laws of 1879, sect. 1) : — 

“No judge, register, or assistant register of probate and insolvency in any 
county shall be interested in or benefited by the fees or emoluments arising 
from any suit or matter pending before the probate court of such county, nor 
act as counsel or attorney therein, or out of court in any suit or matter pending 
before said court, nor in an appeal therefrom.” 

The remainder being as the law was before ; but that which I read 
was new, and that is so plain and specific that nobody’ could after¬ 
wards have any reason for thinking that charge to be lawful. Mr. 
Thacher continued to charge it, however; and Mr. Curry T , one of the 
bank commissioners, learning of it, said to Mr. Thacher that it was 
illegal, and in violation of the Act of 1879. Mr. Thacher, according 
to his own account, then asked Judge Day about it; and what was 
the answer that he received? Any reference to the statute which is 
so plain that he who runs may read and understand it? Not the 
slightest; but, instead, disrespect and scorn of the law. He informed 
the register, who by’ statute was under his own supervision, that it 
was none of the bank commissioners’ business ; and so the register 
kept on charging a dollar. That is what we complain of. We do 
not complain of what he did before the passage of the Act of 1879, 
but that, when the Legislature had passed an Act apparently intended 
to meet that very case, Judge Day treated the statute with contempt 
when it was called to his attention, and told the register that it was 
none of the bank commissioners’ business whether he obeyed it or 
not. Of that we have the right to complain. Judge Day-has for 
years behaved like an autocrat in that county’, as though it was inso- 




1882.] 


SENATE —No. 150. 


681 


lent to call his attention to his continual violations of the laws intended 
to control his conduct. 

I now call your attention to the fourth ground : — 

“ That he was privy to and consented to the violation of law by said former 
register of probate in not keeping a cash-docket open at reasonable times to the 
inspection of the public, and in not accounting for and paying over the fees 
received by him quarterly, as required by law, to the Treasurer of the Common¬ 
wealth.” 

I desire to say, in reference to this charge in connection with this 
one which preceded it, No. 3, that the remarks of my brother 
Thompson in reference to the independence of Mr. Thacher, and 
the theory that Judge Da} 7 had no power over him, was as to the 
fact and as to the law entirely incorrect. The evidence before you 
shows that Mr. Thacher was a man of grossly intemperate habits ; 
that Judge Day took from him his resignation, and held it, so that 
at anv time he could force him out of the office ; that he held it until 
about the time petitions were circulated for his own removal; that 
Mr. Thacher was entirely unfit for the office, and was completely and 
absolutely under Judge Day’s control. 

I have already alluded to the statute of 1861, chap. 95, sect. 1, 
which I will again read : — 

“ The judges of the probate court and of the court of insolvency, in their 
several counties, shall as often as every six months inspect the doings of the 
registers of said courts, and see that the records and files are made up season¬ 
ably, and kept in good order.” 

Now, Judge Day should have known that the statute of 18G2 
required him to examine the accounts of the register, to audit them, 
and see that they were paid over. He knew of the Act of 1861, 
which I have just read, and which required him to supervise the 
official conduct of the register. If he had done his duty under the 
first Act, which he admits he knew of, he would have learned of the 
Act of 1862. But his neglect to obey the first gives him an opportunity 
to deny any knowledge of the second. His only excuse, that I have 
heard of, is, that he went to the war in September, 1862, from which 
he returned in September, 1863. The Act of 1861 was passed long 
enough before he thought of going to the war to enable him to 
become familiar with it, and his excuse does not apply to his disobe¬ 
dience of that Act. If he had complied with the provisions of that 
Act, he must have learned of the defaults of the register. As to the 
validity and good faith of his excuse, I wish to say a few words. 
He came home in September, 1863. He was acting as judge of 
probate in a small county where his official duties could not nearly 
have engrossed his time. What would be the first duty of a judge 
of probate who returned from the war as he did? To see what new 


682 


HEARING —JOSEPH M. DAY. 


[April, 


laws had been passed in relation to his duties as judge of probate. 
Yet he tells you that he was acting as judge of probate from 1863 up 
to 1881, and that this law passed in 1862 concerning his duties, upon 
the statute-book, and plainly indexed, was never seen by him at all. 
Then, I say, that if he was thus grossly negligent of his duty, if he 
chose to go on liap-hazard, without consulting the only guide which 
he had a right to consult, he should be removed from the office which 
he holds, on account of his gross neglect. And, considering the 
character and intemperate habits of that register, it was still more 
his duty to look after him. It would have been his duty, even if 
there had been no statute. 

I come now to the sixth ground, the matter of intoxication. The 
first case before the Committee was that in the railroad-car where 
Judge Day opened a bottle in the company of two ladies. An ac¬ 
count of it will be found in the testimony of Russell Marston and 
Joshua JVT. Howes. Their testimony shows that one of the ladies 
produced a bottle containing some liquid, which Judge Day kindly 
opened ; that the smell of spirituous liquor pervaded the car at once ; 
that the ladies and Judge Day partook of it, and that, very soon 
after, one of those ladies was so intoxicated that she slipped down 
upon the seat in the most indecent position, and that Judge Day 
suffered her to remain there. Judge Day’s excuse is, that these 
ladies or their relatives were acquaintances of his ; that one of them 
asked him to take a drink of lager beer, — “ only a little lager beer ! ” 
— that she produced from her bag a bottle of lager beer, which was 
opened, and Judge Da}^ divided it between the three, each drinking no 
more than a small silver cup full. Now, if there was nothing in this 
case to show that Judge Day was capable of telling what is not true, 
I should sa} r that this story should be believed if it were possible to 
swallow it; but, considering the position in which all the evidence 
puts him, I venture to suggest that a story so improbable should be 
received with some grains of allowance. He saj’s this lady was a 
person of grossly intemperate habits. Now, I do not think any lady 
of grossly intemperate habits would go away on a journey in warm 
weather with a bottle of lager beer to drink in the cars. It is a 
rather lively fluid under such circumstances ; and it seems so im¬ 
probable that she would take that to get drunk on, that a little 
incredulity may be pardoned in those who heard the judge’s story. 
In the second place, if it was. onl} r lager beer, I cannot conceive how 
it would have the powerful and sudden effect it appears to have had. 
It seems to me that Judge Day’s going back to get water to put into 
the cup, and the spirituous smell of the fluid, — which it didn’t 
require very keen or sensitive nostrils to detect, — is quite sufficient 
to outweigh the judge’s very preposterous story. It is a great deal 


1882.] 


SENATE —No. 150. 


688 


worse for him to testify, as he has done in regard to this matter and 
other matters, than it would have been to take a little whiskey in 
that car. I think that the conduct of Judge Day on that occasion 
will seem to the intelligent, law-abiding people of Massachusetts to 
be improper; that he must thereb 3 r have lowered himself in the 
respect and esteem of those who were present in the car, and that 
he must, in their ejms at least, have disgraced his office. I have 
nothing more to say about that. 

In regard to the second occasion, as to what occurred on the cars 
when Mr. Messer was present, I have little to say. Mr. Messer has 
been alluded to here in a manner which provokes resentment. 
Mr. Messer lived in New Hampshire till a few years ago, and I knew 
him well then. His father was one of my earliest and best friends, 
— a man respected and honored by all who knew him. He would 
probably have been governor of that State had he lived a few years 
longer. His son, the witness, is a man of the strictest integrity: 
I would believe him on an}^ occasion and any subject. He tells 3 ’ou 
his story. Judge Da 3 r does not deny its truth. It seems to me, 
that, on that occasion, Judge Da 3 ’ could onty have done what he did 
because he was intoxicated. I cannot conceive of a gentleman of 
his age and position doing what he did on that occasion for any 
other reason. Now, what is his excuse? He sa 3 r s, that in the 
smoking-car the saloon was so foul that he did not want to use it. 
There ma 3 T be possibfy’ something in that excuse ; but he adds that 
he could not go into the saloon in the passenger-car on account of 
his invincible modest 3 T . So Mr. Messer finds him, in broad da 3 light, 
on the platform of the car, modestty doing what he did. 

Mr. Thompson. The evidence is, that it was in the evening: it 
was dark. 

Mr. Wadleigh. And Mr. Messer sa 3 r s it was in the da 3 T time, 
and that Judge Da 3 ^ was intoxicated at the time. The question was 
asked, How do 3 'ou know? No witness can tell exactly how he 
knows a man is intoxicated, other than that he has that appearance. 
There is something in the appearance of an intoxicated man which 
3 ’ou cannot describe, — something like that which arises in questions 
of identit 3 '; and, when a witness who is intelligent and capable of 
judging comes and tells me that he saw Judge Day in a state of 
intoxication, I have no doubt of it, though he cannot name the 
specific symptoms which led him to that conclusion. 

Then we come to the instance where David Bursley saw him at 
Falmouth in 1879. I do not propose to discuss the character of 
David Bursley at this moment, or the probability of his telling the 
truth in this matter. It is sought to prove that he did not tell the 
truth, by bringing up the landlady of the hotel and her daughter to 


684 


HEARING — JOSEPH M. DAY. 


[April, 


swear that they were there all that afternoon, and that the thing 
could not have occurred. A single word about that. It seems, from 
the testimony of Mrs. Davis, that she was in the parlor; that the 
office was on the other corner of the house ; and that the piazza around 
the office extended, not only on the side where the parlor was, but 
around the other side ; and that the office was a large room. I have 
no doubt that Bursley and the landlord (who is now dead) were sit¬ 
ting on the piazza on the side of the house away from the parlor 
when Judge Day came up in the manner stated. It is improbable 
that a person in the parlor, on the other side of the house, could have 
heard him. Besides, it is quite possible that Mrs. Davis might have 
been out of the parlor at the time. The attempt to prove an alibi is 
always more or less suspicious ; and I have no doubt that this affair 
happened precisely as David Bursley swears it did. 

I come now to the matter of rudeness to Mary C. Paddock and 
Clarissa Nickerson, and I have but a word to say in regard to either 
of these matters. In reference to the first, the evidence will convince 
you, I think, that Judge Day was not on that occasion so patient as 
a judge of probate should be. 

In regard to the second, my brother Thompson made a great deal 
of sport, and says that she fainted twice even before the Committee. 
Now, gentlemen, that is not exactly true. She did not faint on either 
occasion, but came near it; and it is true that she said she was sub¬ 
ject to fainting-spells. It was asked her what would make her faint, 
or something to that effect; to which she replied, any thing which 
startled her,—for instance, Judge Day’s coming into the room. So 
that it seems this poor, afflicted woman had come to look upon the 
advent of Judge Day into her presence with terror, — such terror that 
it would cause her to faint. I don’t think, Mr. Chairman, that the 
conduct of a judge of probate should be such as to produce an im¬ 
pression of that kind on the mind of any person. In her statement 
that Mr. Higgins was present, she is mistaken: he was not present. 
Her son was then present, who is now absent from the State. We 
had a subpoena issued for him, but it did not reach him. 

The next ground is No. 8 : — 

“ That, about the year 1874, he wrongfully demanded and received from Alice 
Crowell, now Alice Newcomb, the sum of fifty dollars, she being then admin¬ 
istratrix of the estate of Willard A. Crowell.” 

It seems that she had no valid claim against the insurance com¬ 
pany as administratrix of her husband’s estate ; and that conse¬ 
quently the fifty dollars taken by Judge Day was not taken from her 
as administratrix. She says that she never employed him, or author¬ 
ized him to act for her, but was told that he was going to Boston, and 



1832.] 


SENATE —No. 150. 


685 


that he might do something for her; that he went to Boston occa¬ 
sionally, but she said nothing to him about it. She does not remem¬ 
ber that she said any thing to him. It seems, for some reason, the 
insurance company chose to pay; but there is no evidence to show 
what induced them to give the live hundred dollars. It may be they 
thought she had some case against them, for the insurance companies 
generally get beaten where they defend suits. There is one very 
significant fact which appears in the testimony of Mrs. Crowell 
which Judge Day does not explain, and to which I want to call your 
attention. He says the taking of the fifty dollars was open and 
above-board, and perfectly proper on his part. Now, gentlemen, the 
testimony of Mrs. Crowell shows that these insurance agents went to 
Barnstable to pay her that money, and met her and Judge Day in 
the probate office. A check was given to her there for the five hun¬ 
dred dollars in Judge Day’s presence, but not a word was then said 
by Judge Da}’ about his having any claim against her. For some 
reason he did not choose to allude to his claim in the presence of the 
persons who knew what he had done to obtain the five hundred dol¬ 
lars. She then goes out of the probate office, and walks up toward 
the bank to deposit her check. Judge Day accompanies her, but 
said not a word about his having a claim until the}’ reached the bank. 
There Judge Day, for the first time, broached his claim. Consider¬ 
ing what has been proved against him in this case, and what he 
admits, it is open to suspicion that some motive for such conduct 
on his part existed which he would not like to declare to this Com¬ 
mittee. It seems that he did not dare to name his claim in the 
presence of those agents of the cofnpany, who knew why the five 
hundred dollars was paid, and what he had done to get it. 

I now come to the ninth ground, covering the bribery and whole¬ 
sale corruption that Judge Day was guilty of during the short period 
that he was collector of customs in the Barnstable district. David 
Bursley testifies fully about that: he testifies to all the essential facts 
except the actual payment of the money, which Judge Day reluc¬ 
tantly admits. David Bursley, gentlemen, is upon a bed of sickness 
from which he knows he will never rise. He knows his hours are 
numbered, and that but a few days can pass before he jvill be sum¬ 
moned before the Judge of the living and the dead. Now, it is 
utterly incredible, that in that situation, upon the verge of the grave, 
he should concoct a falsehood against Judge Day, and deliberately 
make oath to it. But, gentlemen, he is corroborated in that story in 
every respect by other witnesses. It rests not at all upon his testi¬ 
mony. What is the gist of his testimony? It is that Judge Day 
demanded and received from the men whom he recommended for 
appointment sums varying from thirty-five to one hundred dollars, 


686 


HEARING —JOSEPH M. DAY. 


[April, 


which payments they were required by law to deny under oath when 
they drew their quarterly pay from the government; and that shortly 
after Judge Day sold the colleetorship to C. F. Swift for about two 
thousand dollars. 

Mr. Bursley produces a list which he testifies is a copy of the list 
made by Judge Day, and we bring here as witnesses four men whose 
names are on that list. Dr. Samuel H. Gould was one of the hospital 
surgeons. He is down on that list for one hundred dollars ; and he 
reluctantly admits that he paid that sum to Judge Day, and that it 
was his part of the whole sum which was raised. 

Dr. George W. Doane is another hospital surgeon whose name is 
on that list for one hundred dollars. He, too, reluctantly admits that 
he paid to Judge Day a hundred dollars, the amount named in the list. 

Mr. Valentine Doane, jun., is on that list for fifty dollars. He, too, 
admits that he paid fifty dollars, precisely the sum for which his name 
is there put down. 

The light-boat, of which Gilbert Crocker was captain, is on the list 
for fifty' dollars. Gilbert Crocker testifies that he paid that sum, first 
giving his note for it to Judge Day, and paying it to Judge Day when 
he drew his second quarter’s salary. 

Mr. Rodman’s name was not on the list at all. Still, it appears 
that twenty dollars was deducted from his first quarter’s pa} 7 , show¬ 
ing that Judge Da} 7 did not confine himself to the list, but went be¬ 
yond it. And all the sums thus collected amounted to some fifteen 
hundred dollars, I think, —fourteen or fifteen hundred dollars. 

Mr. Thompson. There is no evidence that that was all collected. 

Mr. Wadleigh. Mr. Bursley testifies that the respective officials 
w'ere assessed for the sums on the list which he produces ; that he 
told Judge Day it would not be right to sell the colleetorship to Swift, 
and thus expose the men who had paid those sums to the danger of 
removal, and that subsequently Judge Day informed him that he had 
made an arrangement with Swift by which they were not to be re¬ 
moved. Two hospital surgeons, Drs. Gould and Doane, one in¬ 
spector, Valentine Doane, and one light-boat captain, testify that 
they made payments according to the list. Is any reason shown why 
Judge Day should not assess his appointees equally? Would not any 
partiality have become known, and raised a storm against him? 
Does any thing in the evidence suggest even that the assessments 
were not paid as they appear in the list? There is nothing, — even 
in the testimony of Judge Day there is nothing. Look at the nega¬ 
tive evidence of the gentlemen whose names appear on that list. 
Simeon Atwood, James Gilford, and Joseph K. Baker were all wit¬ 
nesses for Judge Day last year. They are his friends. They came 
here, and testified that he never drank a drop, nor spoke rudely to 



1882.] 


SENATE — No. 150. 


687 


anybody in his life. Why are they not produced to contradict David 
Bursley who testifies that Judge Day assured him, that, because they 
had paid the money, they would not be removed by Mr. Swift. 

Mr. Thompson. There has no one said they paid money. 

Mr. Wadleigh. Could they have testified they did not pay the 
money, the living men named in that list would have been here to do 
it; but, besides, Mr. Joseph K. Baker appeared here this year as a 
witness for Judge Day, and for what? To testify that David Bur- 
sle} r ’s character for truth is bad. If he did not pay to Judge Daj r 
the sum for which he was assessed, why did he not testify so? His 
silence when called, and the fact that Judge Day did not call the 
others, nor deny the pa} r ment, proves conclusively that they paid the 
money, as alleged in the ninth charge. 

Let us see, gentlemen, what Judge Day confesses in this matter. 
In his testimony, which I find on p. 504, he says he agreed with 
Bursley to resign the office of judge of probate if he was appointed 
collector; he admits that he did not resign it; he admits that he 
directed Mr. Chipman, his deputy, to make assessments on the office¬ 
holders (p. 516) ; and the next question is,— 

“ Q. —Then, the payments were made for your benefit? A. — Yes, sir, the 
money was to repay me for what I had paid out for political expenses. 

“ Q. — Did you indicate to Mr. Chipman that you wanted pay? A. — I haven’t 
the slightest doubt I did.” 

He also admits that he told Chipman to make these assess¬ 
ments ; and he went on to say, that whatever they chose to pay 
Mr. Chipman was to take, and hand it to him. So that it is true, as 
David Bursle} 7 says, that he planned to take of them these sums of 
mone}’; and, upon his own admission, he demanded them through 
his agent, Mr. Chipman. He also confesses that -he took Mr. 
Knowles’s notes for about two thousand dollars, which notes were 
paid by Mr. Swift, his successor, according to a previous arrange¬ 
ment; and that these notes were given solely on account of the 
transfer of the office of collector. He also confesses that there was 
an arrangement with Mr. Swift as to the office-holders appointed by 
him ; and he says, on p. 504, — 

“ I told him that the gentlemen who had been appointed to office were as 
much his friends as they were mine: they were all good, faithful members of 
the Republican party; and, as long as they discharged their duties, I hoped he 
would not turn anybody out.” 

Thus lie arranged that his appointees were to be kept in office on 
account of the money they had paid to him. Now, what points does 
he take issue with Bursley upon? Wherein does he contradict him? 
He says there was no trade about the collectorship with Swift, but 
that the two thousand dollars was to be “ given me as some recogni- 



688 


HEARING —JOSEPH M. DAY. 


[April, 


tion of my attitude towards the matter.” I remember, in one of 
Shakspeare’s plays, liow a very 7 disreputable character by the name 
of Ancient Pistol said that the wise (?) called stealing, conveying. So 
Judge Day, following his example, calls this wholesale bribery and 
sale of offices, “ some recognition of my attitude towards the matter.” 
I do not know what that means — what kind of recognition it was. It 
was a recognition of the fact that he was a corrupt office-broker; but 
how paying him two thousand dollars for that office — for that was 
the real transaction — was to recognize his attitude in any manner, 
I do not understand. That is probably a sentimental and poetical 
term for bribeiy. 

On p. 515, being asked what Mr. Swift was worth at the time he 
made this munificent “recognition,” he says he thinks from three 
thousand to five thousand dollars. I think it is safe to assume that 
he does not understate it. Being asked how it happened that a man 
who was not worth more than three thousand to five thousand dollars 
happened to present him with two thousand dollars, he gives the con¬ 
vincing answer, “that I might have some advantage from my connec¬ 
tion with the party.” That is the reason ! Can there be an}’ doubt 
about what that transaction with Mr. Swift really was? Can there be 
any doubt whatever that David Bursley’s deposition is true ? Can this 
Committee be deluded by the cunningly devised phrases by which Judge 
Day attempts to cover the most atrocious bribery and corruption ? 

Now, Mr. Bursley says in his deposition that Judge Day told him 
his expenses in getting that office had been about a thousand dollars. 
Judge, Day denies that; but his own testimony shows it to be true. 
While testifying without an}' reference to that part of David Bursley’s 
deposition, he says that he got seven hundred dollars from the office¬ 
holders, and that he did not get enough, into three hundred dollars, to 
pay his expenses. That three hundred dollars and seven hundred dol¬ 
lars added together made just a thousand dollars, which Bursley says he 
represented to him his expenses had been ; so there can be no doubt that 
David Bursley is true on that point. Now, it is not true that Judge 
Day got only seven hundred dollars. It is not true that he paid out 
three hundred dollars more than he got. Those statements are both 
false : but yet they are precisely what David Bursley says he told him ; 
and hence we may presume that what he states now he stated then to 
Bursley, as Bursley says he did. Judge Day says that he did not 
tell Bursley that these men must be assessed to pay his expenses in 
getting that office of collector. Now, it is clear that he got some¬ 
where near fifteen hundred dollars from those office-holders, and it 
is not to be presumed that he assessed them unequally. They under¬ 
stood that they were buying their offices on equal terms ; and the fact 
that he does not call on that stand his friends who know what the 



1882.] 


SENATE —No. 150. 


G89 


payments were, fully confirms David Bursley. Now, Judge Day 
knew that he could not testify that it cost him any thousand or fifteen 
hundred dollars to get the collectorship. He knew that story would 
not be believed. So, after some hesitation and some admissions, 
which go to show that he intended at first to cling to the position 
that the money was paid on account of his expenses in getting the 
office, he finally took the ground that he did not receive it for his own 
benefit, but to pa}' it to the leading Republicans of Barnstable County 
for their party services. To support that theory he tells as improbable 
a story as was ever told beneath an Arab tent in the far East. On p. 
503, Judge Day says in reference to the payments, “It made up, 
partially, what I myself had paid out, in the first instance, for those 
very things.” That was before he made up his mind to saddle his 
own corruption on the leading Republicans of Barnstable County. 
The money, he says (p. 515), was “ to repay me for what I had paid 
out for political expenses.” 

Another step — go along seven pages farther, and you find he says it 
was paid “ to make people happy when I refused to give them office.” 
Now, Judge Day does not deny that he stated that the assessments 
were made to cover his expenses in getting the office of collector, as 
you will see from his testimony on p. 525. Now, Mr. Chairman and 
gentlemen, what did the men understand and what were the men told 
who paid that money? Hear Dr. Gould, Judge Day’s friend: “I 
heard Day was going to exact money for expenses” (p. 195). “I 
told him I had heard a sum had got to be paid for the appointment.” 
Now, did Judge Day deny that? Dr. Gould says he told Judge Day 
that he heard a sum had to be paid for that appointment; but what 
was the answer? Was it, “That is a lie ” ? No such thing. Was 
there any denial that the office was to be sold? Not at all. The 
answer was, “Don’t be troubled before your time,”—an answer 
which indicates clearly that he meant to do just what Dr. Gould sug¬ 
gested to him, “Don’t be troubled before your time.” Dr. Gould 
tells you why he paid that money. “ I paid him the money because he 
had got me appointed.” “ We had to choose to give it to him because 
he went to the expense. I call it paying a part of the expenses 
incident to the office.” “He told me he might have received five 
thousand dollars for those appointments, but he had not done it.” 
He tells his friend, Dr. Gould, “You have paid, to be sure, one hundred 
dollars for your appointment. Of course you have paid your part. 
I get but a beggarly sum for these offices. If I had chosen, I could 
have sold these offices for five thousand dollars instead of fifteen hun¬ 
dred dollars ; but I have not done it.” Wonderful magnanimity on 
his part, he thought. Then Dr. Gould says, “ I considered it to be 
for the expenses lie had been at connected with the office and getting 



690 


HEARING —JOSEPH M. DAY. 


[April, 


the appointment of collector.” That testimony of Judge Day’s friend 
fully sustains David Burst’s account of the affair, that Judge Day 
was paid for the offices, because it had cost him a large sum, as he 
said, to get the collectorsliip. Then, again, Dr. Gould testifies that 
David Bursley was the prime mover, and that he asked Bursley if 
Judge Day wanted any thing. He was about to give David Bursley’s 
reply to that question of his, but Mr. Thompson then objected to his 
proceeding farther, and we did not get Bursley’s answer given to Dr. 
Gould, as to whether Judge Day wanted any thing or not. 

Dr. Doane is another friend of Judge Day’s. He was a most un¬ 
willing and reluctant witness. 

Mr. Thompson. He was one of the petitioners for removal last 
year. 

Mr. Wadleigii. If he did petition for removal, he knew good 
reason why he ought to be removed. He is asked, “ Why did you 
pay it?” Now, his answer is, “It was generally understood that 
we hospital physicians, etc., should pay a certain amount of money 
among us. We considered that (this payment) part of the business 
in getting the office,” ■—thus sustaining David Bursley in relation to 
that matter. Mr. Valentine Doane says, “My appointment was 
brought about through Bursley;” so that his testimony shows that 
Judge Da}’don’t tell the truth when he says David Bursley had noth¬ 
ing to do with the matter. Mr. Doane says, “I think at one time 
at the court-house there was some conversation with Judge Day ; and, 
among other things, the matter of the large expense was suggested 
in obtaining the office, — the collectorsliip. That was in a general 
way. There are no particular facts that I can call to mind in refer¬ 
ence to it. There was quite an expense incurred.” 

That was the ground David Bursley says Judge Day took in 18G1, 
that these payments were to be exacted because he had been at such 
enormous expense in getting the office of collector. That pretence 
he did not dare to make here, although Dr. Gould and Dr. Doane 
and Valentine Doane paid their money on it. Now, David Bursley 
turns a very short corner, and says, the payments were not exacted 
to pay his expenses in getting his office, but to enable him to pay 
the leading Republicans of Barnstable County for their services to 
the party. Now, gentlemen, I want to call your attention to the 
Statutes of the United States in violation of which these payments 
were exacted. I quote from the U. S. Statutes at large, 5th vol., 
chap. 107, sect. 1G, p. GOG, Act of 1822. It has been ever since in 
force ; and it was incorporated into the Statutes of 1878, sect. 2G93, 
without change : — 

account for the compensation for services of any clerk or other person 
employed in any duties in relation to the collection of the revenue shall be 


1882. J 


SENATE —No. 150. 


691 


allowed until such clerk or other person shall have certified on oath or affirma¬ 
tion that the same services have been performed; that he has received the full 
sum therein, charged to his own use and benefit; and that he has not paid, de¬ 
posited, nor assigned, nor contracted to pay, deposit, or assign, any part of 
such compensation to the use of any other person, nor in any way, directly or 
indirectly, paid or given, or contracted to pay or give, any reward or compensa¬ 
tion for his office or employment or the emoluments thereof.” 


Now, Mr. Chairman and gentlemen, Judge Day knew perfectly 
well that the gentlemen from whose quarter’s pa}’ he was deducting 
these amounts were obliged to make such an oath as that statute 
requires. He knew that he was forcing them to commit perjury, or 
give up their offices. He knew that what he was doing was in viola¬ 
tion of the spirit and the letter of the laws of that government whose 
agent and officer he was. I want to refer the Committee to the Act 
of Congress of Feb. 26, 1853. It has been in force ever since, and it 
was incorporated into sect. 5501 of the Revised Statutes of 1878 : — 

“If any person or persons shall directly promise, offer, or give, or cause or 
procure to be promised, offered, or given, any money, goods, right in action, 
bribe, present, or reward, or any promise, contract, undertaking, obligation, or 
security, for the payment or delivery of any money, goods, right in action, bribe, 
present, or reward, or any other valuable thing whatever to any . . . officer of 
the United States, or person holding any place of trust or profit, or discharging 
any official function under or in connection with any department of the gov¬ 
ernment of the United States, . . . with intent to influence his vote or decision 
on any question, matter, cause, or proceeding which may then be pending, or 
may by law or under the Constitution of the United States be brought before 
him in his official capacity or in his place of trust and profit, and shall be 
thereof convicted, such person or persons so offering, promising, or giving, or 
causing or procuring to be promised, offered, or given, any such money, goods, 
right in action, bribe, present, or reward, or any promise, contract, undertak¬ 
ing, obligation, or security, for the payment or delivery of any money, goods, 
right in action, bribe, present, or reward, or other valuable thing whatever, 
and the member, officer, or person who shall in any wise accept or receive the 
same or any part thereof shall be liable to indictment as for a high crime and 
misdemeanor in any court of the United States having jurisdiction for the 
trial'of crimes and misdemeanors, and shall upon conviction thereof be fined 
not exceeding three times the amount so offered, promised, or given, and im¬ 
prisoned in a penitentiary not exceeding three years; and the person convicted 
of so accepting or receiving the same, or any part thereof, of any officer or per¬ 
son holding any place of trust or profit as aforesaid, shall forfeit his office or 
place; and any person so convicted under this section shall forever be disquali¬ 
fied to hold any office of honor, trust, or profit under the United States.” 

You see, it makes it a crime for any official of the United States 
to receive from any other official any reward to influence him in his 
action, in his decisions, or in any manner concerning the duties of 
his office. Now, I say that the action of Judge Day in taking these 
bribes was in violation of that act, inasmuch as there was, and must 
have been, an understanding that they should hold those offices long 


692 


HEARING —JOSEPH M. DAY. 


[April, 


enough to reimburse themselves for such payments ; that he bound 
himself to keep them in office ; that such was the understanding is 
shown by the fact, that, when this office was given up to Mr. Swift, 
he consented to that arrangement. David Burs ley says Judge Day 
told him he did, and Judge Day admits that he talked with Mr. 
Swift on that subject. My brother Thompson says that this is an 
ordinary matter, and that even Carl Schurz allowed somebody to 
collect from the clerks in his department assessments for political 
purposes. Gentlemen, the patriotic common sense of the intelligent 
people of this country is against any such practice; and it is now 
unlawful for political organizations to collect contributions from 
office-holders, even for legitimate purposes. But there was nothing 
of that kind in this case. No political organization stood behind 
Judge Day ; no man went with any political authority to wring, even 
from poor sailors, so large a part of their hard-earned wages. The 
money was exacted, and the offices were sold, solely for Judge Day’s 
benefit; and the story which he gives of his disposal of the money is 
too absurd for human belief. 

And it is this state of facts which the Committee are to consider, 
instead of the purely imaginary case that my brother Thompson 
talks about. Look at Judge Dav’s conduct in the case of Gilbert 
Crocker. He goes to get his first quarter’s pa}’: he is told it is 
customary for men in his position to leave fifty dollars out of his 
quarter’s pa}’. He says, “ I am a poor man : I have a large family, 
and I cannot.” Then Judge Day, in consideration of his being a 
poor man and having a large family to support, is so moved by the 
thought of his little children crying for bread, that he — what? 
Gives up this robbery? No ! by no means : he kindly puts it off to 
the next quarter! He takes his note for fifty dollars, running to 
himself; and then, when next quarter’s pay comes, he wrings out of 
that poor sailor that money, which was robbery, and the vilest rob¬ 
bery,— robbery tinctured with corruption that would undermine -any 
government under heaven in a score of years, if every official, or a 
large portion of the officials, practised it. 

So he conducts with Mr. Rodman. He takes twenty dollars out of 
the pay of that poor man, and keeps it; and all the explanation he 
deigns to give him, is, that if he will inquire of him he will find out 
what it means. Mr. Rodman made no inquiries. Those men knew 
what it meant. They knew that they held their places simply because 
they were expected to pay the man who had recommended them the 
money which he insisted on having in violation of the laws of Con¬ 
gress. 

Now, gentlemen, I ask you to consider for a moment the position 
of Judge Day in this case. Consider the pretences he sets up here,— 



1882.] 


SENATE —No. 150. 


693 


pretences without a shadow of foundation, and which of themselves 
should spur any body of honest and public-spirited men to remove 
him from office as soon as removal could be had. Look at one of his 
pretences, — the pretence that this whole matter included in the ninth 
charge was known to everybody, that there was no secrecy about it. 
Why, gentlemen, had this been known last year, would you have 
found, in the volume which you have before you, no trace of it? 
When those men who paid bribes to Judge Day came here to testify 
to his good character, if this had been all known, would there not 
have been some inquiry of them about it? Dr. Gould says he never 
made an}* concealment about it; and yet he beats about the bush, and 
dodges for pages, before the truth can be extracted from him. He is 
not a bad man ; he means no harm, yet he knew this matter was a 
secret; and you will see, that, for page after page, we followed him 
up, trying to get him to tell what this transaction really was. At first 
he couldn’t remember how much he paid ; but finally a rigid cross-ex¬ 
amination restored his memory, and we got at the facts. . If the truth 
had been publicly known, would there have been on his part any such 
anxiety to conceal the facts ? Would there have been such hesitation 
in telling his story? Not at all. Not only that. I ask you, Mr. 
Chairman and gentlemen, for one moment to examine the answer 
Judge Day filed to the ninth charge. 

Here it is : “The ninth charge is without foundation in fact.” 

That is what he said about it in the beginning of this hearing when 
he hoped the deposition of David Bursley would never be admitted. 
If his sale of the offices was known to everybody, why didn’t he admit 
in his answer the facts which he confessed in his testimony? And 
why did he attack Mr. Bursley’s character, and afterwards admit the 
facts to which he testified ? 

You are told that you should not report in favor of Judge Day’s 
removal because all this bribery and corruption has been approved 
by John A. Andrew, who, knowing Judge Day to be guilty of this 
crime, insisted on his retaining the office of judge of probate, and 
afterwards appointed him provost-marshal for the State ol Massa¬ 
chusetts. John A. Andrew knowing this ! 

Mr. Thompson. I did not say he knew it. 

Mr. Wadleigh. That was the argument. 

Mr. Thompson. Not at all: I said Mr. Elliott knew it. 

Mr. Wadleigh. I understood it differently, and made a memo¬ 
randum of it at the time. I think my brother Thompson said that 
this matter of the ninth charge was no secret, and was generally 
known ; that John A. Andrew must have heard of it, and approved of 
it bv insisting on Judge Day’s retaining the office of judge of probate, 
and appointing him subsequently provost-marshal of Massachusetts. 


694 


HEARING— JOSEPH M. DAY. 


[April, 


Now, gentlemen, the man who makes such a statement about John A. 
Andrew, now in his grave and forever silent, utters a foul slander 
upon the memory of a noble man. There is not in this Common¬ 
wealth, or in all this broad land, a man or woman who knows any 
thing about John A. Andrew, who does not know, that, had he had 
the slightest suspicion of the corruption which Judge Da}’ admits, he 
would have thrust his right hand into the fire, and burnt it off, before 
it should have affixed his name to any commission for Judge Da} 7 for 
any office whatever. No, gentlemen, that corruption was concealed, 
deliberately concealed from 1861, till the dying lips of David Bursley 
revealed it. 

Dr. Gould got mad with Judge Day one time, all the way through, 
and remained so, as he says, for twenty-four hours. During that 
twenty-four hours there dropped from his lips some expressions 
which led to his being summoned before you. But he and Judge 
Day made up, and afler that the doctor made no such unguarded 
statements. Faint rumors crept out from time to time that Judge 
Day had sold offices ; but none but the parties to the transaction 
knew any thing definite about it. People felt that he was corrupt; 
but they hadn’t the evidence of it, until David Bursley, with death 
before his eyes, and the grave yawning at his feet, came and told the 
story which witness after witness, and even Judge Day himself, have 
corroborated. 

It has been shown beyond dispute, that while he held that collector- 
ship he was as corrupt as any man could be. Driven to confess his 
crime, he endeavors to palliate it by the false pretence that he com¬ 
mitted it, not for his own benefit, but for the benefit of the leading 
Republicans of Barnstable County. That statement being made, he 
was forced to name somebody. And whom did he name?' First, 
Nathan Crocker, who, being dead, cannot contradict him. To him 
he claims to have paid a hundred and fifty dollars. Then, being hard 
pressed, after some hesitation he names Louis L. Sellew, who left 
that part of the State a score of years ago, of whose present residence 
he could give no idea; whom undoubtedly he supposed to be dead, or 
at least beyond our reach. “Mr. Sellew,” he says, “came to me 
and demanded of me two hundred dollars on account of the services 
which he said he had performed for the Republican party in years 
gone by. I was acting for no political organization. I asked of 
him no items. I took from my pocket and gave him a hundred and 
forty dollars, of which I made no memorandum, and rendered no 
account to any one.” Gentlemen, as Providence willed it, Louis L. 
Sellew was yet living, and came before you, and asked leave to clear 
his reputation from the vile slanders of Judge Day. He tells you 
he never demanded a cent of Judge Day,—that his account is false 
from beginning to end. 



1882.] 


SENATE —No. 150. 


695 


True, Judge Day sent him twenty dollars by mail, not because it 
was demanded, but because lie had promised him an office and broken 
his promise. Fearing that Mr. Sellew would resent his treachery, 
he sent him twenty dollars to pacify him. That transaction Judge 
Da}’ could not have forgotten in twenty nor in forty years. Ilis posi¬ 
tive statement that Mr. Sellew demanded two hundred dollars, and he 
paid him one hundred and forty dollars, was, to use a common expres¬ 
sion, made out of whole cloth: it was so far from truth, he could 
never have believed it. He admits the truth of Mr. Sellew’s testi- 
moiyy; yet he was willing to blacken his memory, and put a load of 
infamy on his children, to provide a way of escape for himself. 

Then he names Mr. Keith as another leading Republican (a gentle¬ 
man who was never heard of in politics, so far as I can learn) ; 
but finally’, on cross-examination, says he thinks a subscription was 
taken up for Keith, who lost his arms by an accident, and he won’t 
say he did any thing more for him than to subscribe something for 
him on that account. Then, of course, Keith made no demand on him 
on account of political services. 

Then he names Mr. Nickerson, but cannot tell any thing about him 
to enable us to identify him. To save us trouble, he kindly informs 
us that we can’t And him. Those are the “leading Republicans of 
Barnstable County” whom he paraded in his testimony as the men 
for whose benefit he claims to have robbed his appointees. 

The proof of Judge Day’s corrupt practices in the custom-house, and 
of his utter unfitness for any judicial office in 18G1, does not rest on 
the testimony of David Burslcy; though that unsupported would 
sustain it. The attempt to impeach his character utterly and igno- 
miniously failed. Every man who testified against him was shown to 
have some cause for personal hostility to him. His character was 
sustained by witnesses greater in number, and far more reliable in 
character. Even Major Phinney, his life-long antagonist, and the 
leading remonstrant, testified for him, and said that his character for 
truth was never questioned, except by men like Judge Day, who were 
themselves not reliable. Two of the witnesses summoned against 
him testified in his favor. It appears that his character for truth was 
never questioned, except in fierce political quarrels ; and in such 
quarrels nobody’s reputation is spared. Ilis dying words would 
compel belief, though they stood alone. 

But they do not stand alone, — far from it. Strike his deposition 
out of this case, and every substantial fact stated in it is conclusively 
proved by other testimony and by Judge Day’s reluctant confession. 
Beyond all doubt, in 1861, this judge of probate was wallowing in 
corruption, violating his country’s laws, forcing poor sailors in his 
power to pay him bribes which he knew they could not pay, and hold 
their places without the commission of perjury. 



696 


HEARING—JOSEPH M. DAY. 


[April, 


“ Oh ! ” m} r brother Thompson says, “ all that happened long ago, 
and only in federal relations.” That is true; but it marks Judge 
Day’s character in 1861, and shows his utter unfitness for judicial 
office then. He was then about thirty-five years of age, and his 
character was fully formed. Has his character changed for the better 
since that time? There is no evidence of it. Is it probable that his 
success in obtaining thousands of dollars in a few weeks bj r the sale 
of offices converted him into an honest man? The evidence in this 
case shows the contrary. No other corruption so flagrant as that 
which was revealed by the d 3 T ing lips of David Bursley has been 
proved against him, nor was that to be expected. If he has been 
bribed, the lips of the bribers are sealed. Exposure of Judge 
Day would ruin themselves. Lord Bacon was detected only because, 
according to the custom of his age, he took bribes from suitors on 
both sides. We have no right to say that Judge Da} r has constantly 
taken bribes, because we cannot prove it. But we do say that the 
people of Barnstable County have, in this evidence, good reason for 
fearing and believing that he ma} T accept bribes, and for the dread 
which they have of intrusting their interests to his hands. I ask 3 * 011 , 
gentlemen, — each of you, — would 3 t ou like such a judge of probate 
in 3 T our own counties? Could 3 T ou sleep soundly if your own, or your 
friend’s, great interests depended on his decision? Could 3 ’ou, on 
your death-beds, willingly trust to his control the fortunes of those 
whom 3 ’ou love? You know in your hearts 3 ’ou could not. 

Then, how can you censure the people of the good county of Barn¬ 
stable for desiring to rid themselves of such a judge? TIh? 3 ' have 
had to endure him for a long time. For more than a score of 3 ’ears 
he has been a “stench in the nostrils” of the best people in that 
county. The things which we have proved, and man 3 T things we have 
not proved, have utterly destroyed their confidence in his integrit 3 r . 
His holding that office lends a new terror to death. The weak and 
the dying tremble to think that they must leave the wives and the 
children whom the 3 T love to his tender mercies. They humbty ask 
that the Legislature will take down from the walls, where so long it 
has idly hung, this great constitutional right of removal by address, 
and exercise it for their relief. 

Not for the people of Barnstable County only do we ask this. 
The people of the whole Commonwealth are as much interested in 
having good judges of probate as are the dwellers on the sea-washed 
sands of Cape Cod. The removal of Judge Day, the legislative 
declaration that offences like his cannot pass unchallenged, will do 
more to insure to all your constituents a pure judiciary than would 
maiyy chapters of stringent legislation. 

This case and your action upon it concerns, not only the interests 


r 



1882.] 


SENATE —No. 150. 


697 


of your people, but. the honor of }’our grand old Commonwealth. She 
has had no brighter jewel in her crown than the unsullied integrity 
of her judges, — an integrity so lofty, so bright, as to be unclouded 
by suspicion. Will 3*011 stamp with your commendation such dis¬ 
regard of the provisions of your Bill of Rights, and the policy of your 
legislation, and the plain letter of your laws, and such foul corruption 
as has been proved in this hearing? Will your Legislature proclaim 
to this broad land that it does not condemn, but readily condones, 
such offences, such crimes, in your judges? I know that it cannot be 
thus recreant to itself, to the highest interests of its constituents, to 
the honor of the Commonwealth, and to justice. 

Thanking you for your kind attention, I commit this question to 
you, feeling, sure it will receive the candid consideration which its 
importance merits, and that your decision will announce the deter¬ 
mination of Massachusetts that her citizens shall have that greatest 
of blessings in a free State, — a pure, trusted, and trustworthy judi¬ 
ciary. 



































' 











































INDEX. 


A. 

Accounting for fees, specification concerning .... 

Address to Governor. 

Agreement of Goodspeed, Whitman, and Proctor 

Aikin, David K., testimony of. 

Amendment to specifications concerning Nickerson and Crowell 

Amendment to sixth specification. 

Amendment to first specification ....... 

Amount collected of various officers. 

Answer of remonstrants ......... 

Answer of Judge Day. 

Arguments of Thomas H. Talbot. 

Charles P. Thompson ...... 

Bainbridge Wadleigh ...... 

Atkins, John, case of, in insolvency ...... 

Atwood, Simeon, testimony of. 

Atwood, Simeon, jun., amount collected from .... 

Auditing account, specification concerning. 

Andrew, John A., letter of, quoted ...... 


PAGE 
. 28 
xxii, 3 
. 156 
. 236 
. 109 
. 140 
. 140 
. 374 
29, 30 
. 31 

. 43 

33, 559 
66, 657 
. 166 
. 310 
. 374 
. 8, 28 
. 499 


B. 

Bacon, Cornelia W., testimony of . . * » 

Baker, Franklin, amount collected from 
Baker, Joseph K., amount collected from 

testimony of ... 
Baker, Laban, petition of ..... 

testimony of. 

Baker, Ruth B., testimony of . . . • • 

Barnstable, returns of registers in insolvency, in 
docket of superior court in . 

Bassett, Elisha, testimony of. 

Bassett, Theodore F., testimony of 
Baxter, Sylvester, amount collected from . 

Bliss, Asa S., covenant in deed .... 
Bowley, Joshua E., amount collected from . 

Briggs, Bradford D., testimony of . 

Burdett, Everett W., appearance for remonstrants 
Burgess, James A., testimony of . 

Burse, Charles C., testimony of ... 
Bursley, David, amount collected from . 

deposition of. 

report of proceedings at house of 
affidavit as to health of 


. 329 
. 374 
. 374 
298, 439 

3 

. 256 
. 331 
. 106 
. 169 
. 227 
. 317 
. 374 
-. 338 
. 374 
. 539 

4 

. 135 
. 319 
. 374 
. 369 
. 343 
. 558 


















700 


INDEX. 


C. 

PAGE 

Cahoon, Cyrus, testimony of.. 231 

Carroll, Edward J , specification concerning.8, 27 

Case for remonstrants *.284 

Case for petitioners resumed.843 

Case for remonstrants resumed.881 

Cash-docket, specification concerning. 23 

Charge IX., motion to strike out.29 

Chase, Erastus, testimony of.820, 425 

Chase, Josiah, case of, in insolvency.166 

Chatham Lights, amount collected for.374 

Cliipman, Walter, amount collected from.374 

Church, Rev. Dr. A. J., testimony of.841 

Clark, John A., testimony of.513 

Clark, Robert W., testimony of.332 

Clerk of Committee, R. A. Soutliworth chosen.3 

Cobh, Daniel, testimony of.308 

Cobb, Francis D., testimony of.553 

Cohasset Narrows, specification concerning.8, 28 

Collector of customs, specification concerning.28 

Constitution of Alabama cited.60 

Constitution of North Carolina cited..60 

Constitution of West Virginia, cited.60 

Constitutional Convention of 1820, proceedings of, cited .... 54-68 

Corruptly demanding money, specification concerning .... 28, 194 

Counsel for petitioner and remonstrants, appearance by.4 

Covenant in Bliss deed.338 

Crocker, Alfred, testimony of.445 

Crocker, Bradford L., specification concerning, and testimony of . 27, 174, 543 

Crocker, Eben B., testimony of.443 

Crocker, Gilbert, testimony of.355 

Crocker, Nathan, specification concerning ..27 

Crowell, Alice, specification concerning.28 

Crowell, Allen S., case of, in insolvency.166 

Crowell, Edward E., answer of, in insolvency.170 

testimony of.300 

Crowell, Prince S., testimony of.296 

Crowell, Sarah T., testimony of.330 

Cummings, Daniel, specification concerning.27 

Cummings, Joseph, testimony of.240 

Curry, Cadwallader, testimony of.230 

D. 

Davis, Adolphus, testimony of.540 

Davis, Charles G., testimony of.316,418 

Davis, Elizabeth F., testimony of.. 334, 397 

Davis Hotel, specification concerning intoxication at.28 

Davis, John W., amount collected from.. 

Davis, Mary E., testimony of.. 

Day, Joseph M., Judge, specifications for removal of. 7 , 27 

testimony of. 448, 479-493, 552-556 

letter of.237 

receipt of. 142, 241 

collector of customs. 374 











































INDEX. 


701 


PAGE 

Day, Thomas C., testimony of. 396 

Decisions of the Committee.101 

Deposition of David Bursley. 369 

Dennis, Joshua, amount collected from.374 

Dillingham, Charles, testimony of.304 

Dillingham, Lydia B., testimony of. . , 330 

Doane, Ambrose N., specification concerning.8, 27 

testimony of. 129, 309 

Doane, George W., testimony of.202 

amount collected from.374 

Doane, Valentine, jun., testimony of.206 

amount collected from.374 

Docket of Superior Court of Barnstable County.169 

E. 

Evangelical Congregational Society, consent of, to account . . . .385 

Evidence of 1881, motion to consider part of case.79 

Edson, Nathan, remonstrance of.3 

testimony of. 438, 551 

F. 

Falmouth, specification concerning intoxication at.28 

Federal office, misconduct in, motion concerning.29 

Fees, illegal, specification concerning.8, 27 

Freeman, Nathan D., testimony of.314 

amount collected from.374 

French, Mary A., testimony of.390 

Facsimile of Exhibit A.37 

Gr. 

Gifford, Isaiah, specification concerning estate of.8, 27 

testimony of.122 

Gifford, James, amount collected from.374 

Gleason, Daniel A. testimony of.166 

Goodspeed, Charles F., testimony of.141, 545 

Goodspeed, Levi L., specification concerning.8, 27 

Goodspeed, Mary M., agreement of, with Whitman and Proctor . . . 156 

receipt of.142, 157 

specification concerning.8, 27 

Gould, Samuel H., testimony of.193,311 

amount collected from.374 

Governor, Address to.xxii 

H. 

Harriman, Hiram P., testimony of. 228, 352 

Harrison, Emily, motion of, to impound notes.282 

Harrison, Emily, protest of.213 

Harrison v. Swift receipt.327 





























702 


INDEX. 


PAGE 

Harshness and rudeness, specification concerning.8, 28 

Hewins, William, testimony of..302 

Higgins, Jonathan, testimony of. 279, 546 

Hillard, John D., testimony of.315 

Holmes, specification concerning.27 

Hopkins, Henry B., testimony of.363 

Hopkins, Smith K., testimony of . . . . 169, 221, 251, 326, 345, 381, 432 

certificate of, in regard to David Bursley .... 343 

Howes, James S., testimony of.325 

Howes, Joshua C., testimony of.307 

Howes, Joshua Matthews, testimony of.270 

Hutchinson, Benjamin F., testimony of.248 

4 

N I. 

Illegally acting as judge, counsel, specifications concerning .... 27 

Illegal fees, specification concerning.8, 27 

Intoxication, specification concerning.8, 28 

J. 

Johnson, Joseph P., concerning petition of.7 

Judge of probate, specification concerning.28 

K. 

Kelly, Jonathan, specification concerning.27 

Kelley, Watson B., testimony of.323 

Kendrick, John, testimony of.536 

L. 

Lawrence, Thomas H., specification concerning.140 

Lawrence, Joseph C., specification concerning.8, 27 

Lincoln, Clark, testimony of.538 

List of offices, etc. (indorsement on Exhibit “ A ”).374 

Lothrop, Anson D., testimony of.434 

Lothrop, Freeman H., testimony of. 102, 162, 171, 383, 428 

Lowell, Judge, letter of, cited.534 

M. 

Marston, George, testimony of.242 

Marston, Russell, testimony of.267 

Massachusetts Home Missionary Society, consent of, to account . . . 385 

Memorandum book of Samuel Snow.150 

Messer, Augustus S., testimony of.272 

Morse and Holmes, specification concerning ....... 27 

Motion to strike out charge IX. .29 

to file specifications.20 

to consider evidence of 1881 . 79, 97 

to amend sixth specification.. 

of Emily Harrison to impound notes.282 





























INDEX. 


703 


\ 

N. 

PAGE 

Newcomb, Alice, specification concerning..28 

Newcomb, Mrs. Andrew, testimony of.259 

Nickerson, Clarissa, specification concerning.8, 28 

testimony of.120 

Nickerson, David N,, amount collected from.374 

Nickerson, Eleazer, specification concerning.28 

testimony of.278 

Nickerson, Henry, specification concerning.28 

Nickerson, Mrs. Henry, specification concerning.8 

Nickerson, Millard W., testimony of.304 

Nickerson, Seth T., specification concerning.27 

Nickerson, Varan us B., replication of.171 

specification concerning.109 

Norris, Elizabeth C., testimony of. 288, 331, 336 

Nye, Charles H., testimony of.112 

Nye, Hiram, testimony of.404 

Nye, William, testimony of ... . 540 

P. 

Paddock, Mary C., specification concerning.28 

testimony of.265 

Parker, Frederick, testimony of.320 

jl Partition, Young v. Young, specification concerning.27 

Petition for removal.3, 36 

Petitioners’ case resumed ..343 

Pitcher, Samuel, specification concerning.3, 27 

Pope, John W., amount collected from.374 

Proctor, Joseph L , testimony of.156 

agreement of, with Goodspeed and Whitman . . . 156 

Protest of Emily Harrison.213 

Provincetown Lights, amount collected from . 374 

Phinney, Major S. B., testimony of.535 


R. 

Receipt of J. M. Day to Joseph and Charles Cummings 
of Judge Day to Ambrose N. Doane 
of Judge Day to C. F. Goodspeed 
of Mary M. Goodspeed, administratrix . 
Record of proceedings in 1881, specifications of . 
Register of court, specification concerning . 

Remonstrance, form of. 

Remonstrants’ case resumed.. 

Reports of Committee. 

Report of proceedings at David Bursley’s house . 

Rescript in Harrison v. Swift. 

Returns of registers in insolvency. .... 

Rodman, Charles G., testimony of. 

Rogers, Warren, testimony of. . • • • • 

s. 

Sears, Nathaniel, testimony of. 

Sears, Thomas D., testimony of. 


. 241 
. 131 
. 144 
142,157 
7 

. 8, 28 
3 

. 381 


111, XXlll, XXXI 


. 343 
. 327 
. 166 
284, 360 
. 313 


441 

537 


0 

























704 


INDEX 


Sellew, Louis L., testimony of 
Shortle, Dr. Henry, testimony of . 
Simmons, Joliial, amount collected from 
Smith, John M., affidavit of, cited . 

Smith, Cyrus B., testimony of. 

Snow, George H., testimony of 
Snow, Nathaniel, amount collected from 
Snow, Samuel, testimony of 

memoranda by 
specification concerning 
Soutliworth, Robert A., clerk of Committee 
Specification I. 1, testimony concerning 
2, testimony concerning 


3, testimony 

4, testimony 

5, testimony 

6, testimony 

7, testimony 

8, testimony 

9, testimony 


concerning 

concerning 

concerning 

concerning 

concerning 

concerning 

concerning 


10, testimony concerning 

11, testimony concerning 


II. 

III. 

IV. 
V. 

VI. 


VII. 

VIII. 

IX. 


12, testimony concerning 

13, testimony concerning 
testimony concerning 
testimony concerning 
testimony concerning 
testimony concerning 
testimony concerning 


testimony concerning 
testimony concerning 
testimony concerning 


Specifications ...... 

Specifications, prayer for leave to file further 
motion to file . 
for removal of Judge Day 
amendment of . 

Stid, Miss, specification concerning estate of 
account concerning estate of 
Steele, Danforth S., testimony of . 
Stenographer, William B. Wright . 

Stevens, Ada, specification concerning 
Stone, Jeremiah, amount collected from 
Swift, Charles F., testimony of 
Swift, Eugene E. C., testimony of . 

Swift, Noble P., testimony of . 

specification concerning 
Swift, Silas F., testimony of . . . 


PAGE 

. . 554 

. 538 
. 374 
. 558 
. 443 
. 308 
i 374 
149, 232, 541 
. 150 
. 27 

3 

. 240, 460 

125,213, 222, 243, 251, 279, 326, 341, 
464, 472, 473 

104, 211, 227, 228, 278, 304, 456 
. 248, 252, 462, 472 

. . . • . . • 103 

. . . . • • . • 23a 

. 103, 129, 169, 170, 480, 529 

. 231, 232, 338, 468, 474 

103,141,149, 156, 284,288,292, 384, 
481, 497, 507 

. 224, 454, 557 

106, 174, 383, 385, 389, 404, 460, 485, 
506, 511 

. 122, 493, 498 

162, 169, 170, 489 


. 214, 230, 242, 465, 477 

. . . 287,490,511,514 

...... 166 

113, 253, 255, 272, 301, 303-305, 
307-310, 313-317, 319-324, 331, 
333, 335, 339-341, 364, 373, 391, 
392, 397, 398, 404, 476, 495 

. 120, 265, 311, 457, 476, 497 

. 212, 259, 337, 460, 478 

193, 202, 206, 355, 360, 369, 371, 372, 
375, 499, 503, 515 

xxxiii, 7 
8 

. 20 
. 27 

109, 140 
. 8, 27 
494, 498 
322, 375 
3 
27 
374 
306 
341 
125 
27 
309 
























INDEX. 


705 


T. 

PAGE 

Taber, Lois B., testimony of.329 

Talbot, Thomas H., appearance for remonstrants.4 

argument of.. . 43,80 

Taylor, Charlotte E., testimony of.329 

Thacher, Charles, 2d, testimony of.211, 284 

Thompson, Charles P., opening argument of.33 

closing argument of.559 

Tobey, Henry, amount collected from.374 


w. 

Wadleigh, Bainbridge, appearance for petitioner.4 

argument of. 66,657 

"Walker, Rev. W. S., testimony of.313 

Whitman, Josiah B., agreement of, with Goodspeed and Proctor . . . 156 

testimony of.292 

Wilkinson, Zela, amount collected from.374 

Wright, William B., stenographer of Committee.3 

Writ against Hiram Nye.. ..416 


Y. 

Young, Enos R., specification concerning 
Young, Isaac B., amount collected from 
Young, Reuben, specification concerning 


27 

374 

27 


9 
























































































































































library 


































